WAR  DEPARTMENT 


Military  Justice  During  the  War 


A  LETTER 

FROM 

TJJE  JUDGE  ADVOCATE  GENERAL  OF  THE  ARMY 

|  TO 

THE  SECRETARY  OF  WAR 

IN  REPLY  TO  A  REQUEST  FOR  INFORMATION 


WASHINGTON 

GOVERNMENT  PRINTING  OFFICE 
1919 


CONTENTS. 


I.KTTKIt  OK  THK  SECRETARY  OK  W.VR  TO   TUK  JUDGE  ADVOCATK  GKNKRAI '.} 

F.KTTKH  OK  THK  JVlKiK  Al»YOCATK  ( i  I.  \KKAI,  TO   THK  SECRETAKV  OK  W.Mt 

Prior  efforts  to  revi.se  the  Articles  of  War. 

lli'-pousibility  in   Judi;<>  Advocate  (ieiM-ralN  Oilicn  during  tli 

pcri<  »<1. 
I .  Individual  cases  cited  lor  criticism 8 

1 .  The  military  police  case. 

2.  The  conscientious  objector  case. 

3.  The  death  sentences  in  France. 

II.  General  principles  and  methods  in  military  justice 12 

I.  Military  justice  according  to  law  and  not  according  to  th>- 

manding  oflicer's  arbitrary  discretion. 
'2.  Military  code  modern,  not  archaic. 

3.  Preliminary  inquiry  before  filing  ch;i 

4.  Number  of  trivial  charges  filed. 

5.  Acquaintance  of  the  court-martial  with  military  law. 

6.  Staff  judge  advocate  and  trial  jndijo  advocate  difltingulshi-d 

7.  Second  lieutenants  as  counsel  for  defense  in  capital  cases. 

8.  Plea  of  guilty  in  capital  cases. 

9.  Commanding  general  directing  m •on.-.idi'rai .inn  ui"  a  jud-nm-it 

of  acquittal. 

10.  Withholding  judgment  of  court-martial  publicity  till  :uVr  ac- 

tion by  tin-  reviewing  authority. 

11.  Severity  of  sentences  imposed  by  court-mart  ial. 
1'J.  Variability  of  court-martial  8ent<-Mr<-.. 

l:>.  Action  of  Judge  Advocate  General's  ()llic<-  in  «'i|uali/,ini;  or 

dncing  senti-ncw. 

14.  Action  of  Judge  Advocate   <i«-!n'nd,   w)i«'th«T  mandatory  or 
recommendatoij — 

(a)  The  question  of  fact. 

(6)  The  question  of  Knrul  theory. 

(c)  The  controversial  use  of  this  question  of  theory. 

III.  Reroiiiinendations C2 

Improvements  in  court-martial  procedure  and  limitation  of  sentences. 
2 


LETTER  OF  THE  SECRETARY  OF  WAR. 


MARCH  1,  1919. 

MY  DEAR  GENERAL  CRO WDER  :  I  have  been  deeply  concerned,  as  you 
know,  over  the  harsh  criticisms  recently  uttered  upon  our  sj^stem  of 
military  justice.  During  the  times  of  peace,  prior  to  the  war,  I  do 
not  recall  that  our  system  of  military  law  ever  became  the  subject 
of  public  attack  on  the  ground  of  its  structural  defects.  Nor  during 
the  entire  war  period  of  1917  and  1918,  while  the  camps  and  canton- 
ments were  full  of  men  and  the  strain  of  preparation  was  at  its 
highest  tension,  do  I  remember  noticing  any  complaints  either  in 
the  public  press  or  in  Congress  or  in  the  general  mail  arriving  at 
this  office.  The  recent  outburst  of  criticism  and  complaint,  voiced  in 
public  by  a  few  individuals  whose  position  entitled  them  to  credit,  and 
carried  throughout  the  country  by  the  press,  has  been  to  me  a  matter 
of  surprise  and  sorrow.  I  have  had  most  deeply  at  heart  the  interests 
of  the  Army  and  the  welfare  of  the  individual  soldier,  and  I  have  the 
firmest  determination  that  justice  shall  be  done  under  military  law. 

I  have  not  been  made  to  believe,  by  the  persual  of  these  com- 
plaints, that  justice  is  not  done  to-day  under  the  'military  law  or  has 
not  been  done  during  the  war  period.  And  my  own  acquaintance 
with  the  course  of  military  justice  (gathered  as  it  is  from  the  large 
number  of  cases  which  in  the  regular  routine  come  to  me  for  final 
action)  convinces  me  that  the  conditions  implied  by  these  recent 
Complaints  do  not  exist  and  had  not  existed.  My  own  personal 
knowledge  of  yourself  and  man}'  of  the  officers  in  your  department 
and  in  the  field  corroborates  that  conviction  and  makes  me  absolutely 
confident  that  the  public  apprehensions  which  have  been  created 
are  groundless.  I  wish  to  convey  to  you  here  the  assurance  of  my 
entire  faith  that  the  system  of  military  justice,  both  in  its  structure 
as  organized  by  the  statutes  of  Congress  and  the  President's  regula- 
tions and  in  its  operation  as  administered  during  the  war,  is  essentially 
sound. 

But  it  is  not  enough  for  me  to  possess  this  faith  and  this  conviction. 
It  is  highly  important  that  the  public  mind  should  receive  ample 
reassurance  on  the  subject.  And  such  reassurance  has  become  nec- 
essary, because  all  that  the  public  has  thus  far  received  is  the  highly 
colored  press  reports  of  certain  extreme  statements,  and  the  Con- 
gressional speeches  placing  on  record  certain  supposed  instances  of 

3 


M 


4  MII.ITAI'.Y    .IfSTK  I.    I  ri:!X<;    THK    WAR. 

h  and  illegal  treatment.  The  War  Depart incut  and  its  repre- 
sentatives have  ii(»t  been  in  a  position  to  make  any  public  defense  or 
explanation  ami  have  refrained  from  doing  so.  The  opportunity 
recently  afforded  tlio  members  of  your  staff  to  appear  before  the 
Senate  Committee  on  Military  Affairs  has  been  an  ample  one,  and  it 
has  furnished,  I  hope,  entire  satisfaction  to  the  members  of  that 
committee.  But  of  the  proceedings  of  that  commit  tee  I  perceived  no 
general  public  notice;  the  testimony,  when  published,  will  be  some- 
what voluminous,  and  its  publication  will  not  take  place  for  some 
time  yet.  and  it  will  certainly  not  reach  the  thousands  of  intelligent 
men  and  women  who  read  the  original  accounts.  And  yet  it  is  essen- 
tial that  the  families  of  all  those  young  men  who  had  a  place  in  our 
magnificent  Army  should  be  reassured.  They  must  not  be  left  to 
believe  tliat  their  men  were  subjected  to  a  system  that  did  not  fully 
deserve  the  terms  "law"  and  "justice."  And  this  need  of  reassurance 
on  the  part  of  the  people  at  large  is  equally  felt,  I  am  sure,  by  the  Mem- 
bers of  Congress  in  both  Houses,  who  have  of  course  not  yet  become 
acquainted  with  the  proceedings  before  the  Senate  committee.  It  is 
both  right  and  necessary  that  the  facts  should  be  furnished.  It  is 
indeed  a  simple  question  of  furnishing  the  facts;  for  when  they  are 
furnished,  I  am  positive  that  they  will  contain  the  most  ample  re- 
assurance. 

Those  facts  are  virtually  all  in  your  possession,  on  record  in  your 
office.  I  am  aware  that  they  are  voluminous  and  that  a  complete 
explanation  and  answer  to  every  specific  complaint  is  impracticable. 
But  I  believe  that  you  are  in  a  position  to  make  a  concise  survey 
of  the  entire  field  and  to  furnish  the  main  facts  in  a  form  which  will 
permit  ready  perusal  by  the  intelligent  men  and  women  who  are  so 
deeply  interested  in  this  subject. 

I  have  been  asked  by  a  Member  of  the  House  of  Representatives  to 
furnish  him  with  such  a  statement.     And  I  am  now  calling  upon 
you  to  supply  it  to  me  at  your  early  convenience. 
Faithfully  yours, 

XEWTOX  D.  BAKER, 

Secretary  of  War. 

To  Maj.  Gen.  K.  H.  CROWDER, 

Judge  Advocate  General,  War  Department, 

Washington,  D.  C. 


LETTER  OF  THE  JUDGE  ADVOCATE  GENERAL. 


MARCH  10,  1919. 

DEAR  Mil.  SECRETARY:  On  March  1,  1919,  you  addressed  to  me  a 
letter  concerning  the  recent  criticisms  uttered  upon  our  system  of 
military  justice,  and  asking  me  to  make  a  concise  survey  of  the  entire 
field  and  to  furnish  the  main  facts  in  a  form  which  will  permit  ready 
perusal  by  the  intelligent  men  and  women  who  are  so  deeply  interested 
in  the  subject.  On  March  8  I  replied  to  you,  giving  you  a  brief  and 
concise  survey  of  the  field  of  controversy ;  but  the  limitations  of  that 
letter  made  it  impracticable  for  me  to  deal  with  the  subject  in  all  its 
scope.  The  subject  is  one  in  which  it  needs  only  to  set  forth  the  facts, 
based  on  the  records  of  my  office,  in  order  to  perceive  the  injustice  of 
the  charges  that  have  been  made.  This  exposition  of  facts  must  be 
directed  to  each  one  of  the  main  charges  that  have  been  voiced  on  the 
floor  of  Congress  and  in  the  press. 

In  my  first  letter  to  you,  dated  February  13,  forwarded  by  you  to 
the  chairman  of  the  Senate  Committee  on  Military  Affairs,  and  sub- 
sequently printed  in  the  Official  Bulletin  of  March  5,  the  six  general 
criticisms  voiced  by  Senator  Chamberlain  were  dealt  with  at  great 
length  by  statistical  tables  compiled  from  the  records  in  my  office. 
But  these  tables  are,  perhaps,  too  voluminous  for  ordinary  perusal; 
and,  on  the  other  hand,  the  letter  did  not  deal  with  a  number  of  other 
specific  criticisms  made  by  other  Members  of  Congress  in  the  press. 
I  have,  therefore,  gone  over  the  entire  subject  so  as  to  include  a  num- 
ber of  additional  points  of  criticism,  and  have  dealt  with  the  specific 
points  of  Senator  Chamberlain  by  omitting  the  elaborate  statistical 
studies  contained  in  my  first  letter. 

It  is  my  belief  that  the  intelligent  public,  particularly  the  members 
of  the  legal  profession  and  of  the  press,  would  welcome  such  an 
exposition  of  the  facts ;  because  the  case  is  one  in  which  it  is  necessary 
only  to  peruse  the  facts  in  order  to  estimate  at  their  true  value  the 
criticisms,  made  in  haste  and  based  upon  such  imperfect  and  mis- 
leading data. 

Before  proceeding  to  set  forth  these  facts,  I  will  take  a  few  words 
to  indicate  my  own  attitude  toward  the  standards  of  military  justice. 

In  1888,  while  still  a  lieutenant  of  Cavalry,  some  years  before  I 
entered  the  Judge  Advocate  General's  Department  by  detail,  I 
addressed  a  letter  to  Col.  G.  Norman  Lieber,  then  Acting  Judge 
Advocate  General,  inviting  attention  to  the  necessity  for  a  revision 
of  the  military  code.  Col.  Lieber  declined  to  take  up  the  matter, 
fearing  that  the  code  might  suffer  in  essential  features  by  a  revision 
which  might  adapt  it  too  much  to  the  methods  and  traditions  of 

5 


6  MILITARY   JUSTICE  DTJRINC    TIIK    \V.\U. 

rivil  practice.  A^ain  in  1896,  noticing  (liat  < 'onirre-- ;  had  enacted 
a  statute  for  the  revision  of  all  statutes,  and  knowing  that  tho 
rommi>sion  appointed  under  (he  terms  of  that  statute  would  neces- 
sarily consider  the  Articles  of  War,  I  addressed  a  second  letter  to 
the  then  (Icn.  Lieh.T,  Judge  Advocate  General,  asking  his  attention 
to  the  opportunity  (his  afforded  to  secure  a  proper  revision  of  the 
Articles  of  War.  Me  again  declined  to  take  up  the  matter,  remark- 
ing that  he  felt  (hat  the  code  needed  very  little,  if  any,  revision,  and 
that  if  he  had  the  entire  responsihility  of  revising  it  he  would  limit 
himself  to  the  eliminating  of  obsolete  articles  and  a  rearrangement 
of  the  code.  Again  in  1903,  while  Chief  of  the  First  Division  of  the 
(lenerail  Staff,  I  prepared  a  draft  of  revision  of  the  military  code 
and  snhmitted  it  to  the  Secretary  of  War  in  December  of  that  year 
for  his  recommendation  to  Congress.  This  came  to  nothing.  In 
1911,  upon  becoming  Judge  Advocate  General,  I  renewed  my  efforts, 
which  continued  for  the  ensuing  five  years  and  through  three  Con- 
irrc<ses.  The  revision  of  1916  was  the  culmination  of  this  series  of 
proposals.  This  record,  therefore,  must  be  some,  testimony  to  tho 
fact-  that  my  attitude  toward  the  improvement  of  the  military  code 
lias  been  an  advanced  one,  at  least  in  comparison  with  tho  attitude 
of  others  whose  authority  was  superior  to  mine  at  tho  time,  and  that 
these  convictions  of  mine  are  publicly  on  record  for  a  period  of  at 
Iea-t  30  years  past. 

These  few  faets  will  indicate  that  I  am,  at  any  rate,  not  one  who 
has  been  satisfied  with  anything  less  than  the  highest  standards  of 
justice  for  embodiment  in  our  code  of  military  law;  and  that  my 
constant  and  urgent  efforts  have  been  devoted  to  maintaining  tho.-e 
standards  and  to  improving  their  code  whenever  it  seemed  to  me  to 
fall  short  of  those  standards.  It  was  with  this  spirit  that  my  office 
proceeded  with  the  administration  of  military  justice  when  this 
country  entered  the  great  war,  and  the  American  Army,  enlarged 
nianyfold,  was  certain  to  put  our  system  to  such  a  test  as  it  had 
never  before  experienced  in  our  entire  history.  The  staff  of  the 
Judge  Advocate  General  was  gradually  enlarged  from  about  30 
officers  to  more  than  ten  times  that  number;  and  all  of  the  new  judge 
advocate-  were,  of  course,  taken  direct  from  civil  practice,  with  little 
or  no  experience  in  the  military  practice  of  the  National  Guard. 
Thus  the  assurance  was  plain  that  the  spirit  and  traditions  of  the 
criminal  common  law,  with  all  its  safeguards  for  the  accused  and  of 
its  guaranties  of  full  and  fair  trial,  would  dominate  in  the  work  of  the 
judge  advocates. 

I  mention  these  faets  as  demonstrating  that  it  is  humanly  improb- 
able that  any  state  of  things,  even  remotely  justifying  some  of  the 
extreme  epithets  recently  used  in  public  criticism,  could  have  existed 
in  our  Arm}-  during  the  last  two  years. 


MILITARY    .JUSTICE    IVFRIXC    THE    WAR.  7 

I  must  further  digress  for  a  moment  to  state  the  extent  of  my  own 
personal  responsibility  for  the  administration  of  military  justice 
during  the  last  two  years.  Appointed  Judge  Advocate  General 
February  15,  1911,  and  reappointed  upon  the  expiration  of  the  first 
term  of  four  years  in  1015,  I  was  in  active  charge  of  the  Office  of 
the  Judge  Advocate  General  from  the  outset  of  the  war  to  the  end 
of  1917.  In  the  meantime,  on  May  22,  1917,  I  was  detailed  as 
Provost  Marshal  General  and  vested  with  the  execution  of  the  selective 
draft.  I  divided  my  time  during  the  remainder  of  1917  between  the 
two  series  of  duties.  In  the  meantime,  Brig.  Gen.  S.  T.  Ansell,  as 
senior  officer  on  duty  in  the  Judge  Advocate  General's  Office,  after 
August,  1917,  acted  upon  a  large  share  of  the  office  work  without 
submission  to  myself.  In  February,  1918,  a  branch  office  of  the 
Judge  Advocate  General's  Office  was  established  in  France  and 
Brig.  Gen.  E.  A.  Kreger  was  appointed  as  Acting  Judge  Advocate 
General  in  that  position.  In  December,  1917,  at  your  request,  I 
arranged  to  divide  my  time  about  equally  between  the  Office  of  the 
Judge  Advocate  General  and  that  of  the  Provost  Marshal  General; 
but  Gen.  Ansell  continued  to  have  detailed  supervision  over  the 
section  of  military  justice.  Later,  viz,  during  the  months  of  May 
and  June  and  parts  of  April  and  July,  Gen.  Ansell  was  absent  in 
France  on  inspection  duty,  and  during  his  absence  Col.  J.  J.  Mayes 
was  senior  officer  and  supervised  all  details  of  administration  of 
military  justice.  The  remainder  of  1918,  after  July,  Gen.  Ansell 
again  became  senior  officer  in  charge  of  that  subject.  Meanwhile, 
the  Military  Justice  Division  of  the  office  had  been  enlarged  so  as 
to  comprise  nearly  50  officers  on  duty  in  Washington.  Thus  during 
the  latter  quarter  of  1917  and  the  whole  of  1918  the  rulings  upon 
individual  court-martial  cases  did  not  come  to  my  personal  attention, 
except  in  rare  instances,  and  did  not  usually  bear  my  signature. 
Nor  were  the  rules  of  the  administration,  so  far  as  framed  in  my 
office  during  that  period,  personally  framed  or  passed  upon  by  myself, 
with  a  few  important  exceptions  to  which  I  will  later  allude. 

What  I  wish  to  make  clear  is  that,  so  far  as  my  active  approval 
or  disapproval  is  concerned,  there  was  no  time  during  the  latter  part 
of  1917  and  the  whole  of  1918  when  a  court-martial  ruling  or  a  rule 
of  practice  could  not  have  been  made  or  put  into  effect  by  the  senior 
officer  in  supervisory  charge  of  military  justice,  without  personal 
submission  to  myself.  More  specifically,  had  either  of  the  above- 
named  senior  officers  found  reason  sufficient  to  himself  to  alter  the 
practice  in  any  detail  or  to  disapprove  any  individual  court-martial 
sentence,  he  was  in  a  position  to  exercise  free  responsibility  to  do  so 
without  prior  approval  of  myself.  An  important  exception  to  this 
statement  is  the  rule  known  as  General  Order  No.  7,  1918,  of  which 
later  explanation  will  be  made. 


8  MILITARY    .7I-STKT.    HIT,  I  NT,    TFIK    WAR. 

But  lliis  circumstance,  that  I  was  not  personally  responsible  for 
the  <!Hails  of  administration  of  military  justice  during  the  above 
period  and  that  another  officer  was  thus  responsible,  does  not,  of 
course,  idler  the  fact  that  up  to  the  latter  part  of  1017  I  did  share 
•  •ompletely  that  personal  responsibility.  Moreover,  whatever  my 
personal  responsibility,  or  laek  of  it,  for  individual  measures  or  court- 
jnartial  rulings,  I  am,  of  eourse,  responsible  for  the  structure  and 
methods  of  military  justice  as  they  existed  at  the  time  of  our  en- 
trance into  the  war — responsible,  that  is,  in  so  far  as  the  Judge  Ad- 
vocate General's  views  were  consulted  by  the  Secretary  of  War  and 
by  Congress  iu  the  framing  of  the  statutes  and  the  regulations,  and 
in  so  far  as  those  statutes  and  regulations  were  enforced  in  the  field 
and  in  my  ofiice.  And  it  is  because  of  that  responsibility,  and  be- 
cause  of  my  firm  belief  in  the  merits  and  high  standards  of  our  system 
of  military  law,  that  I  am  now  concerned  in  pointing  out  the  facts 
which  vindicate  it  from  the  recently  published  reproaches.  Regard- 
less of  my  share  of  responsibility  during  1917  and  1918  for  the  opera- 
tion of  the  system,  I  could  not  have  performed  the  duties  of  that 
office  up  to  that  period  without  being  vitally  interested  in  vindicat- 
ing the  honor  of  the  Army  and  War  Department  as  involved  in  the 
maintenance  of  that  system. 

I  propose  now,  first,  to  refer  to  certain  individual  cases  recently 
criticised;  next,  to  comment  on  the  general  defects  alleged  to  exist 
in  the  system  of  military  justice;  and  then  to  close  with  some  recom- 
mendations. 

I.  INDIVIDUAL  CASES  CITED  FOR  CRITICISM. 

In  the  recent  speeches  uttered  on  the  floor  of  Congress,  in  the  two 
or  three  press  articles,  and  in  some  of  the  testimony  given  before  the 
Senate  committee  and  published  in  the  press,  certain  individual  cases 
of  court-martial  judgments  are  cited  as  notable  instances  of  in- 
justice. 

In  this  letter  it  is  virtually  impossible  for  me  to  set  forth  the  ex- 
planation that  can  be  made  for  each  of  these  cases.  The  majority 
of  them  are  cases  in  which  the  sentence  is  said  to  be  excessively 
re;  on  this  general  topic  of  severity  I  will  later  offer  what  neecls 
to  be  said.  Other  cases  are  supposed  to  be  marked  by  some  other 
form  of  injustice  or  illegality.  To  comment  adequately  on  all  these 
and  other  cases,  vhirh  from  time  to  time  may  be  cited,  would  here 
be  needless  and  impracticable.  I  have,  therefore,  gather  all  these 
cases  in  an' appendix  which  schedules  each  case  thus  cited  and  makes 
such  explanation  as  our  records  afford;  and  this  schedule  of  indi- 
vidual cases  I  \ull  file  with  you  for  reference.  In  the  meantime,  I 
think  that  I  can  allay  the  apprehensions  that  have  been  excited  by 
the  public  allusion  to  these  cases  if  I  take  two  or  three  of  the  most 
typical  and  show  how  groundless  are  the  criticisms. 


MILITARY   JUSTICE   DURIXG   THE   WAR.  9 

This  first  case  cited  in  a  speech  in  the  Senate  is  that  of  a  soldier  at 
Camp  Gordon  (record  No.  110505,  tried  January  24,  1018),  who, 
while  patroling  the  town  as  military  police,  was  found  at  midnight  in 
a  shop  just  after  a  burglary.  Being  charged  with  burglary,  he 
asserted  that  he  had  entered  the  shop  in  search  of  the  burglars. 
His  story  was  disbelieved,  and  he  was  found  guilty;  the  first  finding 
had  been  not  guilt}7,  but  at  the  commanding  officer's  request  there 
was  a  reconsideration,  and  the  second  finding  was  guilty.  On  revi- 
sion of  the  record  no  legal  error  could  be  found,  but  this  office  reached 
the  opinion  that  though  there  was  sufficient  evidence  to  sustain  the 
finding,  the  evidence  did  not  go  so  far  as  to  show  his  guilt  beyond  a 
reasonable  doubt.  In  such  a  situation  no  supreme  court  in  the 
United  States  (with  three  or  four  exceptions  only)  would  interfere 
and  set  aside  a  jury's  verdict.  Nevertheless,  this  office  recom- 
mended a  reconsideration  of  the  verdict  by  the  reviewing  authority. 
It  was  in  fact  reconsidered,  but  the  reviewing  authority  adhered  to 
the  finding.  But  the  feature  for  emphatic  notice  is  that  reconsidera- 
tion was  given,  not  by  exercising  the  "  arbitrary  discretion  of  a  mili- 
tary commander,"  but  by  referring  the  case  to  tJie  judge  advocate  of 
the  command,  as  legal  adviser.  The  judge  advocate  wrote  an  elabo- 
rate review  of  the  evidence,  disagreeing  with  the  vie\\  of  this  office 
and  recommending  confirmation,  and  the  commanding  general  fol- 
lowed this  opinion  of  his  law  officer 

This  case,  therefore,  instead  of  being,  as  the  critic  had  been  led  to 
believe,  an  illustration  of  "the  control  which  the  military  commander 
exercises  over  the  administration  of  civil  justice,"  illustrates  exactly 
the  opposite.  For,  in  the  first  place,  the  confirmation  of  the  sentence 
was  made,  not  by  the  arbitrary  military  discretion  of  the  commanding 
officer,  but  upon  the  legal  opinion  of  his  Judge  Advocate;  and,  in  the 
second  place,  the  reconsideration  which  wTas  actually  given  by  the 
Judge  Advocate,  on  the  point  of  proof  beyond  a  reasonable  doubt, 
was  a  measure  of  protection  which  the  law  does  not  provide  in  any 
civil  court  hi  the  United  States  for  the  control  of  a  jury's  verdict. 
The  case  is  a  good  illustration  of  a  feature  in  which  the  system  of 
military  justice  sometimes  docs  even  more  for  the  accused  than  the 
system  of  civil  justice. 

Another  case  cited  on  the  floor  of  Congress  is  one  of  disobedience  to 
orders  to  drill  and  of  having  seditious  literature  in  possession  for 
distribution.  The  offender  was  a  conscientious  objector  who  had  not 
been  given  an  opportunity  for  noncombatant  service  and  who  was  not 
attempting  nor  intending  to  distribute  the  literature.  The  sentence 
was  death;  but  the  critic  adds  that  it  was  ''disapproved  by  the  Presi- 
dent, and  the  prisoner  discharged,"  and  he  expresses  the  hope  that 
"the  President  will  exercise  the  same  clemency  and  show  the  same 
mercy  in  many  other  cases."  Now,  the  facts  of  the  record  dcmon- 
110755°— 19 2 


10  MILITARY    .irsTICK    I»ri!IX«;    Tit!     \VAB. 

:e    tin-    pre<  i  .c   oppo.-.ite   <»f  what   the   critic   \\':is  led    to   believe; 
because  in  this  ca-e  (record  No.  110700,  tried  June   17,    191S1   it   waa 
not  the  I're.xident's  rf>  n,i  a-  •/  that  discharged  tin-  primmer;  it  was  the 
effective  otnriit'n>n  of  tlnl  c,  nj  .s-i/.v/////  i  if  niil'tarif  l<»r  which  the  critic 
supposes  not  to  exist.     What  happened  wa-  ih.it  the  Judge  Advocate 
(lenend's  Ollice    recommended  disapproval    of  the   sentence.  01, 
strictly    le^al   grounds   that    the   order   to   drill   was   (under  General 
Orders,  No.  28,  1918)  not  a  lawful  command,  and  hi-  dUobedi. 
was  therefore  not  an  offense;  and  that  then*  was  no  evidence  of  the 
accused '->  intention  to  distribute  the.  literature.     Tin-  .-.cntence  was 
therefore   disapproved    and    the    prisoner   discharged   on   the   le^al 
grounds  stated  by  my  odice.     This  case,  therefore,  far  from  illus' 
ing  the  critic's  thesis,  rather  affords  an  illustration  of  the  operation  of 
military  law  and  justice  in  entire  analogy  to  that  of  civil  law  and 
justice. 

Another  case,  cited  in  the  newspaper  article  read  into  the  Cong 
sional  Record  (Cong.  Rec.,  vol.  57,  No.  44,  Jan.  2:J,  1918,  page  10s^ 
concerns  two  death  sentences  imposed  in  France  for  sleeping  on  post 
in  a  front-line  trench.     There  are  really  three  distinct  questions  in- 
volved in  th<>-<-  •  aaee      lirsi.  whether  a  sentence  of  death  in  all  < 
of  this  offense  should  he  the  inexorable  policy;  secondly,  whether,  if 
not,    theM-    particular   cases   showed   sullicient   extenuating  circum- 
stances: and,  thirdly,  whether  the  case-  were  fairly  and  fully  tried  to 
get  at  the  facts. 

Upon  the  first  question  it  is  enough  here  to  say  that  General 
Pershing  especially  urged  the  importance  of  adopting  this  policy  for 
the  protection  of  his  Ainu's  welfare;  and  his  chief  law  ollicer  con- 
curred in  this  message;  and  that  under  such  circumstance-;  no  one 
could  have  been  criticized  for  acceding  to  this  urgent  request  and 
adhering  to  the  principle  handed  down  by  all  the  fixed  traditions  of 
military  law.  I,  myself,  us  you  know,  was  at  first  disposed  to  defer 
to  the  urgent  recommendation  of  General  Pershing,  but  continued 
reflection  caused  me  to  withdraw  from  that  extreme  view,  and  some 
days  before  the  case  was  presented  for  your  final  action  the  record 
contained  a  recommendation  from  me  pointing  in  the  direction  <>f 
clemency. 

Upon  the.  M-cond  question,  it  can  be  stated  that,  except  for  the- 
youth  of  the.  offenders  (they  were  about  20  years  of  age),  there  were 
no  special  extenuating  circumstances.  The  task  laid  upon  these 
soldiers  was  no  greater  in  its  exactions  than  was  laid  upon  hundreds 
of  others  at  the  very  same  moment  in  the  allied  forces  doing  duty 
in  the  trendies.  The  Chivf  of  Staff's  memorandum  states  the  situa- 
tion with  great  foixv: 

The  American  Expeditionary  Force  ia  confronted  by  the  most  alert  and  dangerous 
foe  known  in  th^  history  of  the  world.  The  safety  not  only  of  the  spntinel's  company 
but  of  the  entire  command  ia  absolutely  dependent  on  the  -vigilant  performance  of 


MILITARY   JUSTICE   DURING  THE   WAR.  11 

his  duties  as  a  sentinel.  The  safety  of  that  command  depends  in  an  equal  measure 
upon  the  prompt  and  complete  obedience  of  the  different  men  to  the  lawful  com- 
mands of  their  superior  officers.  There  is  no  doubt  but  that  the  members  of  this  court 
had  had  the  necessity  for  the  alert  performance  of  the  duties  of  a  sentinel  strongly 
impressed  upon  them  at  the  immediate  time  of  the  commission  of  those  offenses. 
Before  daylight  on  the  morning  of  November  3,  1917,  the  first  attack  by  the  Germans 
upon  the  American  lines  took  place.  A  salient  near  Artois,  which,  was  occupied  by 
Company  F  of  the  Sixteenth  Infantry,  was  raided  by  the  Germans,  who  killed  3  of 
our  men.  wounded  11,  and  captured  and  carried  off  11  more.  The  very  next  night — • 
that  is  the  night  of  November  3-4, 1917 — Private  Sebastian  was  found  sleeping  on  his 
post,  and  on  the  night  of  the  5th,  Private  Cook  was  found  sleeping  on  his  post.  Both 
of  these  men  belonged  to  the  regiment  which  had  suffered  in  the  German  raid  of  the 
2d  and  3d.  This  condition  of  affairs  presented  an  absolute  menace  not  only  to  that 
portion  of  the  line  held  by  the  American,  troops,  but  to  the  French  troops  in  the 
adjacent,  sectors. 

Thtit  the  decision  to  exercise  clemency  was  a  sound  one,  I  do  not 
doubt.  But  no  candid  reader  of  the  record  could  look  upon  these 
cases  as  anything  but  a  distressing  instance  of  the  inevitable  mental 
conflict  that  arises  between  the  stern  necessities  of  war  discipline 
and  the  natural  human  sympathy  for  men  who  have  incurred  the 
death  penalty — a  conflict  which  equally  agitates  every  civil  judge 
and  every  civil  executive  when  such  a  case  is  presented  for  his  action. 
It  is  'unconscionable  that  this  situation  should  b-3  cited  as  a  peculiarity 
of  the  military  system. 

The  third  question — whether  the  case  was  fairly  and  fully  tried  so  as 
to  present  all  the  facts — would  require  too  extended  a  survey  forgiving 
all  the  details  here.  I  content  myself  with  assuring  you  (what  you 
indeed  know  already)  that  the  record  was  scrutinized  by  several  of 
the  most  experienced  judge  advocates  of  my  staff,  as  well  as  by 
myself  personally;  and  that,  although  the  cases  were  not  tried  as 
thoroughly  as  they  could  and  should  have  been  tried,  where  the 
death  penalty  was  involved,  nevertheless  no  reversible  error  was 
found  and  there  was  no  doubt  of  the  facts,  in  either  case.  The  only 
issue  in  this  case  was  the  severity  of  the  sentence,  as  above  mentioned. 

These  illustrations  must  suffice  for  the  present  to  show  how  unre- 
liable have  been  the  public  citations  of  individual  cases  of  supposed 
injustice.  What  the  source  of  information  has  been  for  each  of 
these  cases,  I  am  not  aware.  But  I  believe  that  I  am  justified  in 
assuring  you  that  it  would  be  a  mistake  for  the  intelligent  public 
to  assume,  when  an  individual  case  of  supposed  injustice  is  cited, 
that  there  is  necessarily  any  ground  for  believing  that  injustice  has 
been  done.  The  information  seems  to  have  come  from  such  partisan 
sources,  and  there  are  so  many  hundreds,  that  it  is  natural  to  find 
the  details  gradually  altering  themselves,  in  transmission,  so  that 
the  case  as  stated  becomes  one  of  obvious  injustice,  and  yet  the 
case  in  its  actual  facts  was  nothing  of  the  kind.  How  unreliable 
are  these  citations  of  supposed  cases  of  injustice  can  be  seen  in  the 
circumstance  that  out  of  the  several  scores  of  cases  recently  cited 


12  MILITARY   .ITSTK  K    IHMMXC    THK    WAR. 

in  a  speech  on  the  floor  of  the  House  (Cong.  Her.,  Feb.  22,  p.  4640)  and 
cited  with  the  detail  of  general  court-martial  number  and  place  of  trial 
and  name,  it  has  thus  far  proved  impossible  to  find  and  identify  more 
than  a  small  fraction  of  the  cases  in  the  records  of  this  office,  owing 
to  errors  in  the  citations. 

I  must,  therefore,  so  far  as  individual  cases  are  concerned,  content. 
myself  with  giving  you  the  assurance  first,  that  this  office  is  ready 
and  anxious  to  investigate  and  supply  full  explanation  for  every 
case  that  can  be  identified,  and  secondly,  that  so  far  as  such  inves- 
tigation has  thus  far  been  able  to  be  made  the  cases,  with  few  excep- 
tions, reveal  that  they  merited  no  such  public  statement. 

What  is  really  at  issue,  however,  is  the  general  state  of  things  in 
the  administration  of  military  justice;  i.  e.,  whether  there  do  exist 
specific  shortcomings  of  law  or  of  method  which  in  themselves 
permit  and  have  permitted  the  doing  of  injustice  in  any  appreciable 
fraction  of  cases.  It  is  to  that  real  issue  that  I  now  address  myself. 

II.  GENERAL  PRINCIPLES  AND  METHODS  IN  MILITARY  JUSTICE. 

Assembling  the  various  criticisms  of  a  general  nature,  they  seem  to 
be  reducible  to  the  following  heads: 

•  1.  That  the  general  treatment  of  accused  soldiers  is  not  a  <•<.•<  >nl  ing  to 
ike  r'ujnl  limitations  of  law  as  embodied  in  the  Criminal  Code,  but  is 
to  the  arbitrary  discretion  of  the  commanding  officer  in  each 


J.   That  the  in  ilitary  Criminal  Code  itself  is  not  modern  and  enlightenedt 
but  is  an  archaic  code  which  systematically  belongs  to  medieval  tinn*. 

3.  That  a  soldier  may  be  put  on  trial  by  a  commanding  officer  s  arbi- 
trary discretion,  without  any  preliminary  inquiry  into  the  probability 
of  the  charge. 

4.  That  commanding  officers  do  thus  put  on  trial  a  needlessly  large 
number  of  trivial  charges. 

••>.   That  the  court-martial  is  composed  of  ami  tin  dijtit*<  is  <•<»«!  n<1<d 
by  msn  not  acquainted  with  military  Ian-. 

6.  That  the  Judge  Advocate  combines  incongruously  the  functions  of 
prosecutor,  judicial  adviser  of  the  court,  and  defender  of  the  accused. 

7.  That  second  lieutenants  "Icnowing  nothing  of  law  and  less  than 
nothing  of  court-martial  procedure"   are  assigned  to  the  defense  of 
"enlisted  men  charged  with  capital  or  oilier  most  serious  offenses." 

8.  That  a  plea  of  guilty  is  received  from  an  accused  on  a  charge  for 
which  the  sentence  of  death  may  be  imposed. 

9.  That  commanding  generals,  as  reviewing  authorities,  send  bad-  for 
n  consideration  judgments  of  acquittal. 

10.  Thai  the  judgment  of  the  court  is  kept  s<  en  t  until  after  the  action 
of  the  reviewing  authority  is  taken,  even  whf-n  the  initial  judgment  is 
an  acquittal. 


MILITARY   JUSTICE   DURING   THE  WAK.  13 

11.  That  the  sentences  imposed  by  courts-martial  are  as  a  rule  exces- 
sively severe. 

12.  That  the  sentences  imposed  by  courts-martial  are  variable  for  the 
same  offense. 

13.  That  the  Judge  Advocate  General's  office  either  partakes  in  the 
attitude  oj  severity  or  makes  no  attempt  to  check  it  by  revisory  action. 

14.  That  the  action  taken  in  the  Judge  Advocate  General's  office  is 
ineffectual  to  enforce  military  law  and  procedure,  because  its  rulings 
do  not  have  the  force  of  a  Supreme  Court  mandate,  but  are  only  recom- 
mendatory, and  are  either  ignored  by  the  division  commanders  or  vetoed 
by  the  Chief  of  Staff. 

I  will  now  take  up  these  assertions  briefly  in  succession. 

1.  THAT  THE  GENERAL  TREATMENT  OF  ACCUSED  SOLDIERS  is 
NOT  ACCORDING  TO  THE  RIGID  LIMITATIONS  OF  LAW  AS  EM- 
BODIED IN  THE  CRIMINAL  CODE,  BUT  is  ACCORDING  TO  THE 
ARBITRARY  DISCRETION  OF  THE  COMMANDING  OFFICER  IN  EACH 
CASE. 

The  complete  refutation  of  this  assertion  will  appear  very  plainly 
in  the  answers  to  the  other  specific  criticisms,  which  are  merely 
details  of  this  general  charge;  but  in  order  to  gather  the  full  force  of 
the  answers  which  will  be  made  to  those  more  specific  criticisms  it  is 
necessary  to  keep  in  mind  the  general  structure  and  machinery  of  the 
military  courts.  It  maj7-  be  supposed  that  the  intelligent  public  in 
general  is  not  aware  of  their  essentially  legal  nature  and  procedure. 
The  public  impression  perhaps  has  been  gained  that  there  is  sub- 
stantial correctness  in  the  language  of  one  of  the  Members  of  Congress: 

The  records  of  the  courts-martial  in  this  war  show  that  we  have  no  military  law  or 
system  of  administering  military  justice  which  is  worthy  of  the  name  of  law  or  justice; 
we  have  simply  a  method  of  giving  effect  to  the  more  or  less  arbitrary  discretion  of  the 
commanding  officer. 

As  a  concrete  demonstration  of  the  incorrectness  of  this  assertion, 
the  facts,  later  to  be  cited,  taken  directly  from  the  records  of  courts- 
martial  appealed  to  by  the  critic,  must  suffice  as  a  principal  refutation. 

And  yet  the  critic's  remarks  call  for  more  than  the  citation  of  con- 
crete facts  to  the  contrary.  The  substance  of  my  counterassertion  is 
that  although  the  theory  of  military  justice  does  differ  slightly  from 
the  theory  of  civil  justice,  yet  in  substance  and  in  practice  both  of 
them,  in  our  inherited  Anglo-American  system,  are  fundamentally 
identical,  in  that  justice  is  founded  upon  and  strictly  limited  by  the 
requirements  and  safeguards  of  strict  rules  of  law. 

The  only  kernel  of  correctness  in  the  abstract  statement  made  in 
Congress  is  that  the  theory  of  military  justice  is  in  its  general  purpose 
somewhat  different  from  the  theory  of  civilian  criminal  justice.  The 
contrast  of  theory  between  the  two  is  well  set  forth  in  a  statement  of 


14  MILJTAUY  .rrsTici.  i»n;ix»;  THK  w.vit. 


William   T.   Sherman.    made   3  a^>.    in    discussing  our 

Articles  of  War.      lie  sa\ 


Tho  object  of  civil  law  its  to  secure  1<«  every  human  being  in  u  <t)mnn 
nuiin  of  libert  y,  security,  and  happiness,  consistent  with  tin-  safety  of  all.  Tin-  objis  t 
of  military  law  is  to  govern  armies  composed  of  strong  men,  so  as  to  bo  capable  of 
the  largest  nie:i-nre  of  force  at  the  will  of  the  Nation. 


Thi>  definition  of  Gen.  Sherman  shows  that  the  objects  to  be 
attained  arc  different,  in  that  military  justice  aims  to  make  the  man 
a  bettor  soldier  or  to  eliminate  him  from  the  military  organization  if 
he  ran  not  be  improved,  while  civilian  justice  looks  to  the  ultimate 
protection  of  the  community  at  large. 

P>ut,  oneo  this  difference  of  theory  ami  purpose  i*  conceded,  the 
two  systems  proceed  in  identical  -inttlmd,  viz,  by  the  application  of 
strict  rules  and  regulations  so  drawn  as  to  give  equal  and  fair  treat- 
ment to  all  men,  and  to  protect  them  against  mere  arbitrary  discre- 
tion on  the  one  hand,  and  the  inflexible  rigor  of  automatic  penalties 
on  the  other  hand. 

The  former  end  is  obtained  by  a  system  of  courts,  procedure,  and 
definition  of  offenses  which  contains  the  counterpart  of  civil  justice 
in  virtually  every  respect;  and  the  latter  aim,  viz,  to  protect  the 
offender  from  the  harsh  consequence  of  rigid  penalties,  is  secured  by 
the  method  of  indeterminate  sentences  for  virtually  all  military  sen- 
tences. In  a  few  words,  let  me  set  forth  the  way  in  which  this  system 
operates. 

The  system  of  courts,  procedure,  and  defined  offenses  is  one  of  law 
and  order  and  not  one  of  arbitrary  discretion  of  the  commanding 
officer.  Tho  proceed  ings  follow  the  fundamentals  of  our  criminal  com- 
mon law  —  the  accused  has  his  challenges;  he  may  have  process  for  his 
witnesses;  he  has  counsel  without  cost,  either  selected  by  himself  or 
assigned  by  the  proper  authority:  he  is  not  compelled  to  testify 
against  himself;  he  is  furnished  on  request  a  copy  of  the  testimony 
and  proceedings.  The  proceedings  are  so  conducted  as  to  preserve  for 
scrutiny  of  a  superior  authority  every  point  of  law  that  can  be  raised 
for  the  protection  of  the  accused.  This  record  of  proceedings  goes 
up  to  the  reviewing  authority  and  then  to  the  Judge  Advocate 
ral.  The  Judge  Advocate  General's  rulings  on  revision  repre- 
sent all  those  legal  principles  which  are  required  by  law  and  regula- 
tions to  be  observed.  How  completely  legalistic  is  this  scrutiny  of 
the  trial  record  can  best  be  shown  by  reproducing  here  from  Form 
No.  16  the  fundamental  points  to  be  observed  in  every  general  court- 
martial  trial  before  it  receives  approval  in  the  Judge  Advocate 
•ral's  Office.  This  form  is  known  as  Form  No.  16,  and  upon 
the  initial  examination  of  the  record  these  questions  must  all  be 
answered,  before  sending  the  case  to  the  Chief  of  the  Division  of 
Military  Justice: 


MILITARY   JUSTICE    DURING   THE   WAR.  15 

Was  court  ordered  by  proper  authority? 

Are  all  orders  showing  membership  of  court  properly  entered  in  record? 

Does  record  show  place,  date,  and  hour  court  convened? 

Are  all  members  of  court,  judge  advocate,  and  assistant  judge  advocate  accounted 
for  as  present  or  absent? 

Was  accused  given  opportunity  to  introduce  counsel? 

Was  reporter  sworn? 

Was  interpreter  sworn? 

Was  accused  extended  right  of  challenge  as  to  each  member  of  court? 

Was  action  of  court  upon  challenges  regular  and  properly  taken? 

Was  the  court  sworn? 

Was  the  judge  advocate  sworn? 

Was  the  assistant  judge  advocate  sworn? 

Was  the  accused  properly  arraigned? 

Are  charges  and  specifications  and  name  of  officer  signing  charges  copied  into  record? 

Was  the  trial  within  statute  of  limitations? 

Are  pleas  of  accused  regularly  entered? 

Were  the  witnesses  sworn? 

Are  the  findings  properly  entered? 

Is  the  record  properly  authenticated? 

Is  the  action  of  reviewing  authority  properly  entered  in  record  and  signed? 

In  case  of  adjournment  or  continuance,  are  each  day's  proceedings  properly  sigwd 
by  judge  advocate? 

Alter  each  adjournment  during  trial  is  presence  or  absence  of  members  of  court, 
judge  advocate,  assistant  judge  advocate,  accused,  his  counsel,  and  reporter  properly 
accounted  for? 

Did  all  members  who  participated  in  proceedings  in  revision  vote  on  original  find- 
ings and  sentence? 

W<ire  pleas  of  guilty  properly  explained  by  president  of  the  court? 

\\    r  •  rightd  of  accused  as  a  witness  properly  extended  and  explained? 

Does  each  specification  state  an  offense  under  the  Articles  of  War? 

Are  the  findings  legal? 

Is  the  sentence  legal? 

Does  the  evidence  sustain  the  findings  of  the  court? 

Is  the  action  of  the  reviewing  authority  legal  and  properly  taken? 

Does  any  ruling  of  the  court  on  the  admission  of  evidence  or  other  matters  affect 
the  substantial  rights  of  accused? 

Did  the  court  have  jurisdiction  of  person  and  offense? 

Such  arc  the  fundamental  points  of  law  which  must  first  bo  verified 
before  the  record  proceeds  further  in  the  office.  But  this  is  only  the 
beginning  of  the  scrutiny.  The  Office  of  the  Judge  Advocate  General 
in  the  Division  of  Military  Justice  is  divided  into  several  sections 
according  to  the  nature  of  the  sentence  imposed,  viz,  disciplinary 
barracks  cases,  retained  in  service  cases,  penitentiary  cases,  death 
and  dismissal  of  officers  cases.  In  the  first  two  branches,  including 
the  minor  sentences,  the  case  is  initially  verified  and  approved  or 
disapproved  by  one  officer;  the  allotted  number  during  the  greater 
part  of  1918  was  10  majors  in  this  branch;  the  record  then  goes  to 
the  chief  of  the  section.  Thus  two  officers  under  the  Judge  Advocate 
General  must  pass  upon  cases  of  this  class.  The  same  is  true  of  the 
section  dealing  with  sentences  not  including  dishonorable  discharge 


16  M1I.ITAKY    .11  STICK    nrniM!    THi:    WAII. 


(retained  in  service).  In  both  these  <  -!a->  e-  <>f  ca^es  written  opinions 
.ire  prepared  only  where  tin-  Oftaei  involve  some  new  or  important 
point  of  law  or  some  serious  irregularity  or  nn  unduly  severe  sentence. 
In  the  third  section,  that  of  penitentiary  ca-e«s.  to  which  six  majors 
arc  allotted,  the  written  opinion  is  required  in  every  ease;  one 
oflicer  prepares  this  opinion,  and  it  then  passes  to  the  chief  of  the 
section  for  his  approval;  if  both  officers  approve,  it  then  passes  to 
the  board  of  review,  consisting  of  three  other  ollieers,  acting  as  an 
appellate  court,  eacli  of  whom  must  concur  in  approval  of  the  opinion 
tor  note  his  dissent)  before  the  opinion  is  transmitted  to  the  Chief  of 
the  Division  of  Military  Justice;  finally  the.  opinion  must  be  approved 
by  the  chief  of  that  division.  Thus,  for  cases  of  penitentiary  sen- 
tences. six  ollieers  must  have  scrutinized  the  case  and  concurred  in 
or  dissented  from  the  final  opinion  before  its  submission  for  signa- 
ture to  the  Judge  Advocate  General.  In  the  fourth  section,  dealing 
with  cases  where  the  sentence  is  deatli  or  (for  an  officer)  dismissal, 
again  a  written  opinion  is  required  in  every  case,  and  in  this  instance 
the  chief  of  the  section,  upon  receiving  that  opinion,  assigns  it  to  a 
second  officer  who  makes  an  independent  examination  and  review: 
if  the  second  officer  concurs  in  the  first  opinion,  the  chief  of  the  section 
may  then  approve  it  and  send  it  further  upward:  but  if  the  second 
officer  does  not  concur,  the  case  is  handed  to  a  third  officer  for 
examination;  not  until  two  officers  concur  in  an  opinion  does  the 
chief  of  the  section  accept  it  and  approve  it  and  send  it  onward;  it 
then  arrives  at  the  board  of  review,  where  each  of  the  three  officers 
on  the  board  of  review  must  concur  in  the  final  opinion;  it  then 
goes  in  to  the  Chief  of  the  Military  Justice  Division  for  his  sanction. 
Subject  to  office  changes  in  procedure  from  time  to  time,  the  fore- 
going is  substantially  the  course  of  examination  of  court-martial 
e  which  has  been  in  vogue  heretofore  in  my  office.  Thus  in  these 
most  serious  cases  seven  officers  must  have  passed  upon  the  case 
before  it  arrives  finally  for  the  signature  of  the  Judge  Advocate 
(leiieral.  Moreover,  the  board  of  review  is  a  double  one,  like  some 
appellate  courts,  having  two  branches,  each  composed  of  three 
officers;  during  the  past  six  months  or  more  these  srx  officers  repre- 
sent one  former  chief  justice  of  a  State  supreme  court  (who  resigned 
his  office  to  become  judge  advocate),  one  former  justice  of  nine  years' 
incumbency  on  the  Philippine  Island  Supreme  Court,  two  professors 
of  criminal  law  from  leading  universities,  who  have  been  between 
15  and  20  years  at  the  bar,  and  two  other  eminent  practitioners  of 
equal  or  longer  legal  experience  before  their  appointment  as  judge 
advocates.  It  may  be  safely  asserted  that  in  no  State  of  the  Union 
is  any  more  thorough  scrutiny  given  to  the  record  of  a  criminal  case 
than  is  given  in  my  office,  and  that  in  most  State  supreme  courts  the 
scrutiny  does  not  approach  in  thoroughness  the  methods  here 
employed. 


MILITARY   JUSTICE   DURING   THE   WAR.  17 

Moreover,  it  should  also  be  kept  in  mind  that  the  accused  under  the 
system  of  military  justice  enjoys  an  advantage  which  does  not  exist 
in  civil  justice,  viz,  the  automatic  appellate  examination  of  every 
serious  case.  In  civil  justice  there  is  no  appellate  or  revisory  action 
unless  the  accused  has  the  moral  aggressiveness  to  insist  upon  it,  and 
possesses  the  money  (or  the  friends  who  will  contribute  the  money) 
to  print  the  record  and  to  retain  counsel  who  will  argue  the  case  on 
appeal.  But  every  soldier  is  assured  not  only  of  an  automatic  appeal, 
as  a  safeguard  against  illegal  or  unfair  condemnation,  but  also  of  a 
double  appeal  in  serious  cases.  The  proceedings  (except  in  case  of 
inferior  courts,  corresponding  to  petty  police  courts,  and  having 
power  to  impose  only  short  sentences  of  imprisonment)  are  taken 
down  verbatim,  and  every  word  of  the  testimony,  every  ruling  of  the 
court,  and  every  claim,  of  counsel  is  submitted,  first,  to  the  reviewing 
authority  in  the  field.  This  authority  is  the  commanding  general  who 
appointed  the  court  and  who  in  all  serious  cases  (practices  vary  some- 
what in  the  different  divisions)  submits  the  case  to  the  judge  advocate 
of  the  division  for  a  quasi  judicial  opinion.  This  judge  advocate, 
having  the  rank  of  a  major  or  lieutenant  colonel,  has  been,  since 
September,  1917,  in  almost  every  instance  a  lawyer  fresh  from  civil 
life,  chosen  for  his  high  standing,  and  imbued  with  the  standards  and 
traditions  of  civil  practice  rather  than  those  of  the  Regular  Army; 
hence,  likely  to  give  fully  as  careful  scrutiny  as  any  civilian  judge 
would  give.  If  the  reviewing  authority  approves  the  judgment,  it 
then  goes  on,  if  a  general  court-martial  case,  to  the  Judge  Advocate 
General  at  Washington  for  the  second  appellate  scrutiny  (if  in  France, 
to  the  Paris  branch  office  of  the  Judge  Advocate  General's  Office); 
the  method  of  scrutiny  in  this  office  has  been  above  described.  It 
goes  finally  to  the  Judge  Advocate  General  or  to  the  senior  officer 
acting  as  Judge  Advocate  General  for  military  justice,  who  appends 
his  signature  if  satisfied.  Every  general  court-martial  case  thus 
obtains  thorough  scrutiny  in  two  separate  stages. 

Putting  together  these  features  of  the  automatic  appeal  and  the 
thorough  scrutiny  of  all  general  court-martial  cases  by  at  least  three 
superior  officers,  and  in  some  classes  of  cases  by  eight  superior  officers, 
before  final  disposal,  it  is  believed  that  no  such  guaranties  for  the 
protection  of  the  accused,  in  the  scrutiny  of  the  trial  courts'  judgment 
in  criminal  cases,  exist  in  any  civilian  system  in  the  United  States. 
I  take  consolation  in  believing  that  if  the  public  at  large  and  particu- 
larly the  families  of  those  men  who  have  been  subjected  to  military 
discipline  during  the  past  two  years  could  realize  the  thoroughness  of 
this  s}7stem,  they  would  feel  entirely  satisfied  that  the  system  is 
calculated  in  its  method  to  secure  ultimate  justice  for  every  man; 
and  that  the  instances  where  this  result  is  not  obtained  must  be 
exceptional  only.  In  the  foregoing  description,  I  have  tried  to  make 
110755°— 19 3 


18  MILITARY  .j  i -STICK  i>ria.\<;  TIU-;  \VAK. 

it  possible  for  the  intelligent  civilian  to  vi^uali/.e  (lie  military  pro- 
cedure a.s  it  really  is,  and  MH  i-(  I  in  the  fervid  imagination  of 
those  \\ho  do  not  know  it  and  have  never  tried  to  understand  it. 

Tho  other  chief  stage  in    military   ju.-tiee,   vi/.,    the  stage  of   tho 
..ig  <>f  the  sentence,  has  for  its  aim,  as  already  stated,  to  protect 
the.   oifender   from    the    harsh    or    unequal    consequences   of   a   rigid 
•m  of  penalti.'s.     It  atUiins  this  end  by  u  method  of  indeienui- 
(or  prolmtionary)  sentence-.      It  is  not  generally  known,  i  pre- 
sume, ihat  the  only  War  Department  prisons  to-day  in  the  I'nited 
State-,  ai-e   tin-   three  ^ (-called    Disciplinary  Barracks,    vi/,,  at  Fort 
Lcavcnworth,    Kans.,  at  Fort  Jay,  Governors  Island,  N.  Y.,  and 
Vlcatraz,  San  Francisco,   in  which  are  served  substantially  all 
sentences  of  imprisonment  for  military  offenses  other  than  the  short 
terms   (less  than  six  months)   served  in  the  camp  guardhouse.     In 
the-e  disciplinary  barracks,  every  sentence  is  indeterminate  as  b 
minimum,  i.  e.,  virtually  a  probationary  sentence  for  every   man 
whose  oll'ense  is  not  so  heinous  as  to  require  immediate  separation 
from  the  Army.     Speaking  generally,  soldiers  convicted  of  purely 
military   offenses,    i.   e.,   desertion,   mutiny,   absence  without  leave, 
dis.  >!)edience  to  oilic  .tidting  an  officer,  etc.,  etc.,  arc  sent  to 

these  barracks;  the  jc  nitentiary  being  used  (except  in  rare  and 
heinous  eases)  only  for  those  oll'enses  involving  murder,  forgfry. 
embe//lement,  or  other  civil  <-rimes.  The  indeterminate  or  proba- 
ti-»:iary  sentence  having  no  minimum,  only  a  maximum,  the  con- 
finement may  be  terminated  at  any  time,  and  the  offender  (except 
in  the  unusual  case  where  a  sentence  of  dishonorable  discharge  h.-is 
not  been  suspended)  may  be  restored  to  duty  in  the  Army  when- 
his  record  of  intelligence  and  good  conduct  justifies  the  commandant 
of  the  disciplinary  barracks  in  so  recommending;  and  hundreds,  if 
not  thousands,  of  offenders  have  been  so  restored  since  the  beginning 
of  tin'  war. 

I  can  not  forbear,  at  this  moment,  to  cite  as  an  illustration  an 
incident  recently  told  by  the  commandant  of  the  Fort  Leavenworth 
Barracks,  while  attending  the  conference,  lately  held  in  your  oflice 
on  prison  discipline.  He  cited  the  case  of  an  enlisted  man  who  had 
been  sentenced  to  two  years  for  desertion.  Arriving  at  the  discipli- 
nary barracks  on  March  8,  1916,  he  soon  acknowledged  the  error  of 
his  former  conduct,  went  into  the  disciplinary  battalion,  and  was 
restored  to  duty  within  nine  months;  was  assigned  to  the  Sixty 
fourth  Infantry  at  El  Paso,  became  successively  corporal,  battalion 
sergeant  major,  and  regimental  sergeant  major;  landed  in  France 
March  15,  1918;  anxious  to  get  into  the  fighting,  he  began  again,  at 
his  own  request,  at  the  bottom,  as  private  in  another  unit;  was 
made  sergeant  and  fought  at  Chateau-Thierry  hi  July,  1918;  was 
sent  to  an  officers'  training  camp,  commissioned  as  second  lieu- 


MILITARY   JUSTICE   DURING   THE   WAR.  19 

tenant  on  October  1,  1918,  was  promoted  to  be  first  lieutenant  on 
October  28,  and  ended  on  armistice  day  in  command  of  Company 
L,  One  hundred  and  thirty-eighth  Infantry.  He  wrote  to  the  Com- 
mandant a  few  months  ago,  recounting  his  history,  and  ending  thus: 
''There  is  only  one  question  which  I  have  to  ask:  Do  you  consider 
that  I  have  made  a  success?"  And  yet  the  entire  period  of  time 
which  had  elapsed  since  his  original  sentence  was  less  than  three 
years.  In  other  words,  though  sentenced  for  a  period  of  two  years, 
he  had  been  released  from  confinement,  restored  to  duty,  and  traveled 
up  through  the  grades  of  noncommissioned  officer  and  had  earned 
promotion  through  two  grades  of  the  commissioned  officer,  and 
occupied  an  honorable  status  in  the  Army,  within  a  few  months 
after  the  nominal  period  of  his  original  sentence  had  expired. 

This  incident  illustrates  somewhat  prematurely  what  I  shall  have 
later  to  say  about  the  length  of  some  of  these  apparently  severe 
sentences.  But  the  incident  here  illustrates  what  I  am  concerned 
to  emphasize,  viz.,  that  military  justice  possesses  in  its  indeterminate 
sentence  and  its  probationary  methods  a  system  that  is  in  advance 
of  that  of  probably  any  State  of  the  Union.  I  am  given  to  believe 
that  very  few  of  our  States  yet  possess  a  law  authorizing  this  indeter- 
minate sentence  with  no  minimum.  Our  disciplinary  barracks  should 
indeed  be  thought  of  as  a  reform  school,  rather  than  a  prison;  it 
corresponds  to  the  term  "industrial  school"  as  used  in  some  States. 
And  I  need  hardly  point  out  that  the  dsciplinary  barracks  at  Fort 
Leavenworth  are  totally  distinct  from  the  United  States  Penitentiary 
at  Leavenworth.  And  I  remember  that  you  yourself  recently  stated 
informally  at  the  above  mentioned  conference  of  officials  that  in 
your  opinion  the  disciplinary  barracks  at  Fort  Leavenworth  was  the 
best  penal  institution  in  the  United  States.  Without  claiming  any 
personal  credit  for  its  excellent  administration,  I  must  here,  as 
some  sort  of  proof  of  my  own  deep  and  long-standing  interest  in 
enlightened  military  justice,  take  the  liberty  of  reminding  you  that 
the  probationary  system,  as  exemplified  at  the  disciplinary  barracks, 
was  initiated  in  1913,  on  my  own  personal  recommendation,  two 
years  after  my  first  appointment  as  Judge  Advocate  General;  and 
that  the  act  of  March  4,  1915,  which  transformed  the  formerly  so- 
called  United  States  military  prison  at  Fort  Leavenworth  into  the 
United  States  disciplinary  barracks,  and  organized  the  modem 
system  of  probationary  detention  for  military  offenders,  was  drafted 
at  my  instance.  Space  does  not  permit  me  to  describe  more  fully 
its  methods  of  vocational  training  and  of  psychological  and  psychia- 
tric study  and  attention  given  to  all  prisoners  there  confined.  I  will 
only  mention  that  Maj.  King,  now  Lieut.  Col.  King,  who  was  for  a 
long  time  stationed  at  the  Fort  Leavenworth  barracks,  and  whose 
genius  I  encouraged  and  supported  in  applying  his  practical  methods, 


20  MILITARY   JVSTICK    WRIN«;    THK    WAR. 

is  an  officer  (»f  (lie  Regular  Army  <>f  the  l"nited  .md  that  the 

elaborate  psychiatric  attention  given  to  military  offenders  sent 
there  for  detention  is  not  paralleled,  so  far  as  I  am  aware,  in  any  of 
the  civilian  penitentiaries  now  administered  by  the  Federal  Cn.veni- 
ment,  nor  at  most  of  the  State  penitentiaries. 

This  much  ought  in  justice  to  be  placed  here  on  record,  as  informa- 
tion  douhtless  new  to  the  intelligent  American  public,  and  yet  calcu- 
lated to  as-i-t  in  maintaining  that  public  confidence  in  the  military 
penal  system  to  which  it  is  justly  entitled. 

2.  TIIAT  THE  MILITARY  CRIMINAL  CODE  ITSELF  is  NOT  MOD- 
ERN AND  E-NLHJUTKNED,  BUT  IS  AN  ARCHAIC  CODE  WHICH  SYS- 
TEMATICALLY BELONGS  TO  MEDIEVAL  TIMES. 

Of  this  statement  I  can  only  remark  that  it  is  baseless.  Those 
who  have  ignorantly  repeated  the  statement  may  be  perhaps  extenu- 
ated for  this  utterance  to  the  American  people  of  a  gross  slander, 
not  only  upon  the  War  Department  and  the  military  system,  but 
also  upon  the  Congress  which  so  conscientiously  revised  the  military 
code  in  1916.  But  though  extenuated  they  can  not  be  exonerated; 
for  the  entire  story,  so  plain  that  anyone  can  read,  is  contained  in 
the  introductory  six  pages  to  the  Manual  for  Courts-Martial  pub- 
lished in  November,  1916,  and  printed  with  everyone  of  the  250,000 
copies  that  have  been  issued  since  that  date.  Those  introductory  pages 
state  the  entire  history  of  the  Articles  of  War,  or  Military  Code;  explain 
the  revision  of  1874,  and  enumerate  the  most  fundamental  of  the  changes 
introduced  in  the  thorough  revision  of  1916.  That  introduction,  how- 
ever, does  not  state,  and  I  will  now  add,  that  the  revision  of  1916  was 
pending  in  draft  for  four  years  before  the  Houses  of  Congress;  that  the 
draft  was  prepared  in  my  office  shortly  after  my  appointment  as  Judge 
Advocate  General;  that  it  was  founded  on  the  most  exhaustive  con- 
sideration of  the  entire  military  code,  as  well  as  on  a  thorough  com- 
parison with  the  modern  criminal  law  and  its  progressive  tendencies; 
and  that  the  hearings  before  the  Military  Affairs  Committee  (S. 
Kept.  229,  63d  Cong.,  2d  sess.,  Feb.  6,  1914)  showed  the  most 
conscientious  discrimination  of  even-  detail;  and  that  the  testimony 
iil Is  a  volume  of  146  pages. 

The  military  criminal  code  of  1916  no  more  deserves  the  term 
"archaic  "  than  the  Revised  Statutes  of  the  United  States  under  which 
the  Federal  courts  since  1878  administered  civil  justice;  and  it  is 
nearly  40  years  later  than  the  civil  Revised  Statutes.  It  represents 
the  result  of  the  most  conscientious  and  constructive  thought  which 
could  be  brought  to  bear  by  the  combined  energies  of  the  War  De- 
partment and  of  the  Congress  of  the  United  States  in  the  year  1916. 

That  the  experiences  of  this  great  wr.r,  with  all  its  novel  condi- 
tions, multiplying  forty-fold  the  size  of  our  military  forces  should 


MILITARY   JUSTICE  DURING  THE  WAR.  21 

have  revealed  nothing  in  the  way  of  new  lessons  for  improvement, 
is  not  for  a  moment  to  be  asserted.  In  the  light  of  that  experience, 
which  subjected  the  military  code  to  a  tremendous  and  unprece- 
dented test,  I  readily  admit  that  certain  improvements,  limited  in 
number,  have  been  demonstrated  to  be  worth  while  introducing,  and 
I  shall  conclude  this  letter  with  a  suggestion  of  those  improvements. 
But  the  statement  repeatedly  made,  and  published  far  and  wide,  that 
the  military  code  of  1916  is  "an  archaic  code  which  systematically 
belongs  to  medieval  times"  and  does  not  "belong  to  this  modern 
enlightened  period,"  but  rather  "to  the  England  of  200  years 
ago,  whose  criminal  code  of  that  time  was  marked  by  civil  harsh- 
ness and  brutality,"  is  not  only  a  cruel  and  dangerous  slander, 
but  is  nothing  less  than  a  reflection  upon  the  Congress  which  so  con- 
scientiously consummated  that  great  task. 

3.  THAT  A  SOLDIER  MAY  BE  PUT  ON  TRIAL  BY  A  COMMAND- 
ING OFFICER'S  ARBITRARY  DISCRETION,  WITHOUT  ANY  PRE- 
LIMINARY INQUIRY  INTO  THE  PROBABILITY  OF  THE  CHARGE. 

Every  system  of  penal  justice  has  some  method  of  insuring  the 
exercise  of  caution  by  a  responsible  officer  in  scrutinizing  an  accu- 
sation before  an  accused  is  put  to  the  necessity  of  defending  himself 
by  a  formal  trial.  The  traditional  method  inherited  by  us,  in  civilian 
justice,  for  serious  offenses,  is  the  presentment  of  a  grand  jury.  This 
method  has  now  proved  cumbrous  and  ineffective;  it  has  been  aban- 
doned in  perhaps  a  majority  of  our  States.  The  modern  method  of 
those  States  is  a  so-called  information  by  the  official  State  prosecutor, 
filed  after  such  inquiry  as  he  sees  fit  to  make.  This  modern  American 
method  is  the  one  to  which  France  and  other  continental  nations 
arrived  some  centuries  ago,  about  the  time  when  England  developed 
the  grand  jury  instead.  This  modern  American  method  is  also  the 
one  used  in  our  courts-martial;  it  arrived  in  the  Anglo-American 
military  system  some  centuries  ago,  said  to  be  by  adoption  from 
Scotland,  which  itself  had  adopted  the  French  system;  for  the  French 
were  the  great  military  nation  of  three  centuries  ago. 

By  this  Anglo-American  military  system,  some  officer  must  file 
charges  before  any  soldier  can  be  tried.  This  protection  is  invariable. 
Often  the  judge  advocate,  as  legal  adviser,  additionally  scrutinizes  a 
serious  charge  before  it  is  filed.  This  is  exactly  the  protection  given 
by  the  State  official  prosecutor  in  the  modern  American  method. 
How  essential  and  thorough  is  this  protection  can  only  be  appreciated 
by  perusing  the  strict  terms  of  the  law  and  regulations.  Paragraph 
62  of  the  Manual  of  Courts-Martial  reads : 

By  the  usage  of  the  service  all  military  charges  should  be  formally  preferred  by — 
that  is,  authenticated  by  the  signature  of — a  commissioned  officer. 


22  AIIUTARY   Jl'STICi;    I.'l'RIXi.    TITi:    WAR. 


pli  7-")  reads: 

Submission  of  charges.  —  All  charges  for  trial  l»y  court-martial  will  be  prejwred  in 
tripl:  :  th<-  pr«'.<icrib«'d  ch;  ;is  a  first  shoot  and  ii.-ing  such  :i<Mi' 

sheets  of  ordinary  pap«>r  a.s  are  required.     They  will  1««  accompanied  — 

(a)  Except  when  trial  is  to  ho  had  by  summary  court,  by  a  hrn-1"  statement  of  the  suh- 
ttance  of  all  material  testimony  crpcrled  from,  each  material  wifnexs,  both  those  for  the 
prosecution  and  those  for  the  defense,  together  v-ith  all  available  and  necessary  infant' 
as  to  any  other  actual  or  probable  testimony  or  evidence  in  the  case;  and 

(6)  In  the  case  of  a  soldier,  by  properly  authenticated  i-vidcnr.-  of  convictions.  if 
any,  of  an  offense  or  offenses  committed  by  him  during  his  current  enlistment  and 
within  one  year  next  preceding  the  date  of  the  alleged  cnminiwion  by  him  of  any 
offenses  set  forth  in  the  charges. 

They  will  be  forwarded  by  the  oflicer  preferring  them  to  the  oflicer  immediately 
exercising  summary  court-martial  jurisdiction  over  the  command  to  whirh  the  aocu«xi 
belongs,  and  will  by  him  and  by  each  superior  commander  into  whose  hands  they 
may  come  either  bo  referred  to  a  court-martial  within  his  jurisdiction  for  trial,  for- 
warded to  the  next  superior  authority  exercising  court-martial  jurisdiction  over  the 
command  to  which  the  accused  belongs  or  pertains,  or  otherwise  disposed  of  M 
cumstanees  may  apjM»ar  to  require. 

Paragraph  70  proceeds: 

Investigation  of  charges.  —  If  the  officer  immediately  evrcisint:  .suiniiury  co'irt- 
martial  jurisdiction  over  the  command  to  which  the  accused  belongs  or  jx-rtaina 
decides  to  forward  the  charges  to  superior  authority,  he  will,  before  BO  doing,  either 
carefully  investigate  them  himself,  or  u  ill  cause  an  officer  other  than  the  offn-fr  preferring 
the  charges  to  invent  ignit  tli-m  (-artfully  and  to  report  to  him.  orally  or  other  irise,  the  result 
of  guch  investigation.  The  officer  investigating  the  charges  will  afford  to  the  accused 
an  opportunity  to  make  any  statement,  offer  any  evidence,  or  present  any  matter  in 
extenuation  that  he  may  desire  to  have  considered  in  connection  with  the  accusation 
against  him.  (Sec  par.  225  (/».  p.  112.)  If  the  accused  desires  to  submit  nothing. 
the  indorsement  will  BO  state.  In  his  indorsement  forwarding  the  charges  to  superior 
authority  the  commanding  officer  will  include:  (a)  The  name  of  the  officer  who  in- 
vestigated the  charges;  (ft)  the  opinion  of  both  such  officer  and  himself  as  to  whether 
the  several  charges  can  be  sustained;  (c)  the  substance  of  such  material  statement,  if 
any,  as  the  accused  may  have  voluntarily  made  in  connection  with  the  case  during 
the  investigation  thereof;  (d)  a  summary  of  the  extenuating  circumstances,  ii  any, 
connected  with  the  case;  (/>  his  recommendation  of  action  to  be  tak«-n. 

It  will,  therefore,  be  st-cu  that  tin-  regulations  require  theMri<-t,M 
scrutiny  by  a  re>|x>nsil>le  oHieer  before  any  arrive*  I  «  -an  he  put  on 
trial  by  a  court-martial. 

Ill  one  of  tile  speeches  uttered  in  Congress,  occurs  the  following 
sentence  : 

The  comrnandiii!,'  officer  may.  I'ithout  any  inr^tiydtion  of  the  nrruin*tanct&,  order 
a  man  tried  by  court-martial;  in  the  French  Army  such  cases  are  not  sent  to  trial 
until  investigation  can  determine  whether  the  man  ought  to  be  tried. 

How  is  it  possible  for  such  an  assertion  to  be  made,  in  the  face  of 
the  law  and  regulations  represented  in  the  quotation  above  from 
paragraph  76  of  the  manual  ?  The  safeguard  contained  in  our  manual 
of  military  justice  stands  on  exactly  the  same  footing  with  the  safe- 
guard contained  in  the  modern  method  of  the  State  prosecutor,  and 
of  the  French  system  as  cited  by  the  critics. 


MILITARY   JUSTICE   DURING  THE   WAR.  23 

But  whatever  may  be  the  law  and  the  regulations,  doubtless  it 
may  be  asserted  that  the  regulations  are  not  obeyed  in  spirit.  This 
is,  in  fact,  the  precise  assertion  made  in  one  of  the  congressional 
utterances  and  to  that  assertion  I  now  come. 

4.  THAT  COMMANDING  OFFICERS  DO  THUS  PUT  ox  TRIAL  A 
NEEDLESSLY  LARGE  NUMBER  OF  TRIVIAL  CHARGES. 

It  has  been  asserted  that  commanding  officers  direct  the  filing  of 
trivial  charges  in  excessively  large  numbers.  The  precise  language 
is:  "It  is  not  surprising,  under  the  circumstances,  that  there  are  too 
many  trivial  cases  sent  to  trial  by  court -marl  ial." 

Let  us  examine  this  assertion  in  the  light  of  the  facts  of  military 
justice  during  the  past  year  as  shown  by  the  records. 

The  United  States  military  forces  raised  up  to  November  11, 
1918,  numbered  some  4,186,000;  of  these  about  290,000  were  already 
in  service  at  the  opening  of  the  war;  of  whom  127,000  were  in  the 
Regular  Army.  Thus  over  90  per  cent  were  new  men,  fresh  from 
civilian  life.  It  must  be  taken  for  certain  that  their  unfamiliarity 
with  military  discipline,  and  the  novelty  of  its  rigid  restraints,  would 
produce  an  unusual  proportion  of  minor  breaches  of  discipline.  In 
other  words,  if  commanding  officers  had  been  merely  as  strict  and 
rigorous  as  with  the  Regular  Army  before  the  war,  in  pursuing 
minor  breaches  of  discipline  with  court-martial  charges,  the  ratio 
of  trials  would  be  at  least  as  great,  and  presumably  far  greater,  than 
before  the  war  and  the  accession  of  the  new  army. 

But  the  facts  show,  on  the  contrary,  that  commanding  officers 
must  have  been  far  less  strict  and  rigorous  than  before. 

Let  us  take  first  the  serious  charges  brought  before  general  courts- 
martial.  The  printed  report  of  the  Judge  Advocate  General  for 
the  fiscal  year  1918  shows  that  the  total  number  of  general  court- 
martial  trials  in  the  Regular  Army  of  127,000  in  the  year  ending 
June,  1917,  was  6,200,  or  about  one  for  every  20  men;  while  the 
total  in  the  entire  Army  for  the  year  ending  June,  1918,  was  less 
than  12,000,  or  only  one  for  every  200  men  (the  military  forces  on 
May  31  numbering  2,415,000  and  the  average  for  the  year  not  being 
ascertainable  with  accuracy);  and  during  the  last  six  months  of 
1918  the  total  was  7,624,  or  at  the  rate  per  annum  of  only  one  for 
every  275  men  (the  military  forces  on  November  11,  1918,  number- 
ing 4,185,000).  As  to  special  courts-martial,  for  the  lesser  offenses, 
the  number  in  the  Regular  Army  for  the  year  ending  June,  1917, 
was  2,970,  or  one  for  every  42  men,  while  for  the  year  ending  June, 
1918,  it  was  14,700,  or  only  one  for  every  165  men  on  the  above 
annual  basis.  Moreover,  as  between  the  Regular  Army  and  National 
Guard,  and  the  National  Army  or  new  drafted  men,  the  number  of 
general  courts-martial  for  the  year  ending  June,  1918,  was  10,363 


24  MILITARY   JUSTICE   DURINO   THE   WAR. 

for  the  former,  ami  only  1,660  for  the  latter,  or  one  for  every  107 
mm  in  the  Regular  Army  mi<!  National  (iuard  (inimbering  on  May 
:{1,  I'.MS,  some  1.112,000,  and  composed  in  part  of  -ra-onrd  m, 
but  only  one  in  every  785  men  for  the  National  Army  (numbering 
on  May  31,  1918,  some  1,303,000,  and  composed  entirely  of  n«-w 
drafted  men);  showing  conclusively  that  commanding  officers  were 
mora  lenient  ami  liberal  with  the  men  fresh  from  civilian  life. 

Turning  now  to  the  ''trivial  offensrs  referred  to  in  the  above  utter- 
ance, they  are  covered  by  the  summary  courts-martial,  representing 
the  cxtremeh  petty  disciplinary  penalties.  The  number  of  trials  for 
the  Regular  Army,  viz,  48,000  in  1917  (rising  from  an  average  of 
38,000  for  10  years  past,  due  to  a  proportionate  increase  in  the  size  of 
the  Regular  Army),  rose  in  the  year  ending  ,hme,  1918,  to  only 
212,000,  or  slightly  more  than  four  tunes  the  number,  although  the 
ent  ire  military  forces  in  the  year  ending  June,  1918,  rose  to  2,415,000, 
or  nineteen  times  the  former  size.  In  short,  the  petty  disciplinary 
penalties  dropped  from  a  ratio  of  1  to  each  2.7  men  to  a  ratio  of  1  to 
each  1 1.4  men,  or  a  decrease  for  1918  to  less  than  one-quarter  of  that  of 
1917. 

There  could  be  no  more  conclusive  demonstration  that  command- 
ing officers,  though  faced  with  a  situation  full  of  inducement  to 
rigor  in  enforcing  discipline  among  raw  and  untrained  men,  did  in  fact 
use  remarkable  consideration  and  self-restraint  in  not  resorting  to  the 
instrumentalities  of  courts-martial.  The  facts  show,  therefore,  pre- 
cisely the  opposite  of  the  conditions  asserted  on  the  floor  of  Congress. 

5.  THAT  THE  COURT-MARTIAL  is  COMPOSED  OF  AND  THE  DE- 
FK.VSE  is  CONDUCTED  BY  MEN  NOT  ACQUAINTED  WITH  MILITARY 
LAW. 

It  would  perhaps  be  sufficient  in  refuting  this  criticism  to  point 
out  that  the  court-martial,  though  it  nominally  combines  in  itself 
the  functions  of  judge  and  jury,  and  though  this  combination  is 
under  military  conditions  absolutely  unavoidable,  has  nevertheless, 
as  its  essential  and  predominating  function,  that  of  a  jury  of  fact. 
The  court-martial  listens  to  the  testimony  and  makes  findings  of 
fact  based  upon  the  evidence.  In  our  criminal  common  law  it  has 
always  been  regarded  as  a  disadvantage  that  the  jury  should  be 
technically  skilled  in  the  law;  and  it  is  a  well-known  practice  of  all 
experienced  defenders  in  criminal  cases  to  challenge  and  exclude 
from  the  jury  members  of  the  bar.  Whether  this  belief  is  a  sound 
one,  I  do  not  pretend  to  say;  I  only  point  out  that  the  possession  of 
legal  knowledge  by  the  jury  is  at  least  not  considered  vital  in  ordinary 
eivil  justice.  In  the  practice  of  military  justice,  the  legal  knowledge 
necessary  to  insure  an  obedience  to  the  requirements  of  law  as  to  the 
composition  of  court,  the  procedure,  and  the  definition  of  the  offenses 
charged  is  expected  to  be  supplied  primarily  by  the  commissioned 


MILITARY   JUSTICE   DURING  THE   WAR.  25 

judge  advocate,  who  acts  as  the  judicial  adviser  of  the  reviewing 
authority.  And  the  thorough  scrutiny  and  review  in  the  Office  of 
the  Judge  Advocate  General  (a  review,  as  already  pointed  out,  more 
elaborate  and  thorough  than  is  ordinarily  supplied  by  any  civil 
system)  is  especially  calculated  to  insure  an  observance  of  all  the 
rules  of  law.  As  the  entire  testimony  is  reported  verbatim,  including 
every  point  of  law  raised  by  objections  of  counsel,  and  as  the  applica- 
tion of  all  relevant  rules  of  law  must  lie  open  to  scrutiny  on  the  face 
of  the  record,  it  is  obvious  that  the  court-martial's  own  lack  of  tech- 
nical knowledge  of  law  (in  so  far  as  it  might  exist  in  a  given  case)  is 
amply  made  up,  and  more  than  made  up,  by  the  legal  scrutiny  sup- 
plied in  the  course  of  automatic  appeal  already  described. 

But  in  spite  of  these  guaranties  of  legality  for  the  court's  action, 
the  military  system  none  the  less  takes  all  possible  pains  to  insure  an 
acquaintance  with  the  law  by  the  members  of  the  tribunal.  The 
entire  military  code,  with  an  elaborate  commentary  and  an  appendix 
of  forms,  making  a  volume  of  400  pages,  and  entitled  "A  Manual  for 
Courts-Martial,"  is  distributed  in  abundant  quantities  throughout 
the  Army  and  forms  a  part  of  every  military  officer's  education. 
Since  1916  more  than  250,000  copies  of  this  manual  have  been 
printed  and  distributed;  in  the  month  preceding  the  armistice  in 
November,  1918,  a  new  edition  of  50,000  copies,  revised  to  date,  were 
being  distributed  throughout  cantonments  and  camps  in  this  country 
and  to  the  divisions  in  the  theater  of  war.  Every  officer  of  the 
Regular  Army,  during  his  four  years  in  the  Military  Academy,  must 
pass  an  examination  in  the  course  of  military  law.  Every  reserve 
officer  who  graduated  from  a  training  camp  in  1917  and  1918  was 
equally  obliged  to  study  and  pass  an  examination  upon  the  Manual 
for  Courts-Martial.  Thus  a  fan*  familiarity  with  the  substantive  and 
the  procedural  portions  of  military  law  is  established  as  a  part  of  every 
officer's  military  training.  Moreover,  the  regular  duties  of  almost 
every  officer  in  active  service  oblige  him  to  take  his  turn  frequently 
either  as  a  member  of  the  court  or  as  a  judge  advocate  or  as  counsel 
for  the  defense.  Thus  there  are  probably  few  officers  in  the  service 
who  have  not  had  a  greater  or  less  practical  experience  in  the  use  of 
the  military  code,  and  who  have  not  thus  familiarized  themselves 
with  the  operation  of  the  system  which  they  have  already  studied  in 
the  Manual  for  Courts-Martial. 

In  the  closing  portion  of  this  letter  I  am  proposing  an  expedient 
which  will  supply  an  additional  guaranty  of  technical  legal  knowledge 
in  the  composition  of  the  court  in  cases  especially  likely  to  involve 
serious,  difficult,  or  complex  questions  of  law.  Apart  from  such  ex- 
ceptional cases  I  am  of  the  firm  opinion  that,  so  far  as  the  members 
of  the  court-martial  can  properly  need  an  acquaintance  with  the 
military  code,  they  are  in  fact  ordinarily  equipped  with  enough  of 
such  knowledge;  and  that  the  efficacy  of  the  guaranties  for  the  ob- 
110755°— 19 1 


26  MILITARY    JUSTICE    IilT.iNi,    Till-.    \VAIl. 

nice  of  such  Hllcs  of  lav    .  »j   depend,  in  the  military  M'stclH. 

upon  the  extent  of  the  court-martial's  K'gal  KM- A\  ledge  (for  the\ 

:lially  jurors  of  fact),  but  upon  the  legal  knowledge  of  the  com- 
mi—ioned    (staff)    judge   advocate,   WHO   advises   the   reviewing   au- 
thority, and  of  the  commissioned  (staff)  judge  advocates  \vh<>  S<TU- 
tini/.e  the  record  in  the  Office  of  the  Judge  Advocate  General  hy 
of  automatic  appeal. 

6.  THAT  THE  JUDGE  ADVOCATK  (<>VIUM^  1  \<  o.vcut  OISLV 
THK  Fi  N( TIOXS  OF  PROSECUTOR,  JITDICIAL  Ai>vi>r.i:  OF  THK 
COURT,  AND  DKFKNDKI:  OF  THK  Art  i  SF.D. 

That  ihe  position  of  a  judge  advocate  is  a  unique  one  may  be 
conceded.  A  precise  analogy  does  not  exist  in  the  civil  system. 
Tills  is  because  military  conditions  are  not  identical  with  civil  condi- 
tions. But  the  assertion  that  the  judge  advocate  combines  incon- 
gruous functions  which  defeat  each  other  or  substantially  impair  his 
efficacy  as  a  guardian  of  the  military  law  must  be  emphatically 
denied. 

The  staff  judge  advocate  is  supposed  to  supply  the  professional  and 
technical  legal  knowledge  that  is  requisite  to  secure  the  observance 
of  the  law  in  all  stages  of  the  trial.  Essentially  he  is  a  kind  of  super- 
intendent of  justice.  From  beginning  to  end  his  duty  is  to  prevent 
the  occurrence  of  illegalities.  In  this  respect  he  aids  the  accused  quite 
as  much  as  he  aids  the  prosecution;  he  has  no  more  interest  in  securing 
a  conviction  than  in  securing  an  acquittal.  He  is.  by  his  position, 
as  impartial  as  is  the  Comptroller  of  the  Troaury,  whose  principal 
function  is  to  see  that  no  moneys  are  paid  out  except  according  to 
law,  irrespective  of  the  persons  to  whom  they  are  to  be  paid.  In 
practice,  during  the  present  war,  a  commissioned  judge  adv., 
(whose  rank  is  never  less  than  that  of  major  or  lieutenant  colonel)  is 
attached  to  the  staff  of  each  commander  of  a  division  or  a  department 
or  other  large  organization  having  a  separate  zone  of  jurisdiction. 
After  a  court-martial  trial  is  ended  and  when  the  record  arrives  in  the 
hands  of  the  commanding  general  as  reviewing  authority,  the  judge 
advocate's  main  function  in  military  justice  is  exercised;  he  reviews 
the  record,  and  advises  the  commanding  general  whether  the  trial 
has  been  conducted  according  to  law  in  every  respect;  this  includes 
the  duty  to  advise  whether  the  weight  of  evidence  sustains  the  con- 
viction, regardless  of  legal  error.  In  this  aspect  he  i-  e— cut ially  an  ap- 
pellate judge,  and  it  is  his  duty  to  enforce  the  law  as  fully  on  behalf 
of  the  accused  as  on  the  behalf  of  the  Government.  The  judge  ad- 
vocate thus  attached  to  the  division  commander's  staff  has  other 
duties  of  legal  advice,  corresponding  to  those  of  the  Attorney  General 
of  the  United  States  as  legal  adviser  of  the  Government  in  all  civil 
matters.  But  in  military  criminal  justice  his  function  is  essentially 
judicial. 


MILITARY   JUSTICE   DURING  THE   WAR.  27 

The  misunderstanding  which  has  led  to  the  above  criticism  is 
doubtless  based  upon  a  confusion  of  the  staff  judge  advocate  with  the 
trial  judge  advocate.  The  latter,  who  bears  the  same  title,  but  who 
is  not  commissioned  as  a  judge  advocate,  performs  actually  the 
duties  of  prosecuting  attorney  in  an  ordinary  criminal  case.  This 
trial  judge  advocate  is  usually  a  junior  officer  and  is  detailed  from 
any  branch  of  the  service  (Infantry,  Artillery,  etc.),  but  not  ordinarily 
from  th  e  Judge  Advocate  General's  branch ;  i.  e. .  he  is  not  commissioned 
as  a  judge  advocate,  though  he  may  have  had  legal  experience  in 
civil  life.  He  is  detailed  anew  for  each  separate  court  which  may 
remain  in  session  for  some  weeks  or  months.  He  therefore  usuaUy 
conducts  a  series  of  trials  for  a  certain  period  in  that  division.  But 
he  is  entirely  distinct  in  personality  from  the  staff  judge  advocate, 
who  later  acts  as  the  judicial  advisor  of  the  reviewing  authority.  It 
may  be  confidently  asserted  that  (except  in  a  few  special  cases)  no 
staff  judge  advocate  attached  as  judicial  advisor  to  the- commanding 
general  has  acted  during  the  present  war  as  trial  judge  advocate 
(or  prosecuting  attorney)  in  a  court-martial  trial.  The  few  excep- 
tions to  this  statement  occurred  in  special  cases  (such  as  the  Houston 
riots  and  murders  in  1917)  where  a  staff  judge  advocate  was  specially 
detailed  to  conduct  the  prosecution,  and  where  also  the  accused  were 
aided  by  counsel  consisting  of  specially  detailed  officers  of  high  rank 
and  legal  experience  or  by  civil  counsel  of  their  own  choice,  but  in 
such  case  the  judge  advocate  was  brought  in  from  a  different  depart- 
ment or  division. 

If  this  distinction  be  kept  in  mind,  viz,  the  distinction  between  the 
staff  judge  advocate  regularly  attached  as  legal  advisor  to  the  staff 
of  the  reviewing  authority,  and  the  trial  judge  advocate  specially 
detailed  for  the  prosecution  of  general  court-martial  trials  in  the  vari- 
ous units  within  the  division,  it  will  be  perceived  that  these  two 
functions  are  in  practice  exercised  by  different  persons.  The  trial 
judge  advocate  does  indeed  perform  the  duty  of  prosecuting  attor- 
ney; he  is  supposed  to  conduct  the  prosecution,  not  indeed  with  the 
ruthless  partisanship  frequently  to  be  observed  in  civil  prosecuting 
attorneys,  yet  with  the  thoroughness  suitable  to  a  proper  performance 
of  his  duties.  But  the  staff  judge  advocate,  in  whose  hands  the  record 
of  the  trial  subsequently  arrives  and  who  reviews  the  record  and 
advises  the  reviewing  authority  as  to  its  legality,  is  a  different  per- 
sonage and  is  in  no  way  hampered  by  having  formerly  acted  as 
prosecuting  attorney  in  the  same  case.  Such  has  been  the  universal 
practice  in  our  Army  during  the  present  war.  It  is  believed  that 
this  plain  statement  of  facts  ought  to  suffice  to  remove  that  natural 
misapprehension  which  seems  to  have  been  founded  on  a  confusion 
of  the  terms. 

The  necessity  of  furnishing  some  legal  advice  by  a  trained  military 
officer  on  many  complex  aspects  of  law  and  the  impracticability  of 


28  MH.ITAI:Y  JUSTICE   1'i'UiNt;  Tin:  WAI;. 


in  the  staff  Organization  more  than  one  oflicer  for  this 
purpose  dors  indeed  require,  the  staff  jud^e  advocate  occasionally 
to  givo  legal  advice  in  a  composite  capacity.  Whether  the^o  few 
anomalous  situations  can  be.  removed,  with  due  regard  to  the  ne 

3  of  military  organization,  is  a  prohlem  that,  lias  often  heen 
di-cu-sed.  On  that  point  it  is  enough  to  say  that  the  system  which 
we  now  possess  has  substantially  stood  the  test  of  time  and  experi- 
ence. But  so  far  as  concerns  tin*  actual  administration  of  military 
Criminal  justice,  it  ought  to  be  plainly  understood  that  military 
law  does  not  tolerate  the  anomaly  of  expecting  the  same  man  to  be 

i  appellate  judge  and  prosecutor,  and  that  in  the  practice  of 
th£  present  war  (as  above  pointed  out)  the  trial  judge  advocate 
acting  as  prosecuting  attorney  in  general  courts-martial  is  u  different 
person  from  the  staff  judge  advocate  regularly  attached  to  the  staff 
of  the  reviewing  authority  as  a  judicial  officer  and  quasi  appellate 
jud<j;e. 

7.  THAT  SECOND  LIEUTENANTS,  "KNOWING  XOTHIXG  or  LAW 
AXD  LESS  THAN  NOTHING  OF  COUBT-MABTJAL  PROCEDURE/' 
AUK  ASSIGNED  TO  THE  DEFENSE  OF  "  ENLISTED  MEN  CHARGED 
WITH  CAPITAL  on  On:i:i:  MOST  SERIOUS  OFFENSES." 

In  commenting  on  this  criticism  I  may  dispose  of  one  part  of  it, 
\r/.,  the  statement  that  these  officers  "know  nothing  of  law  and  less 
than  nothing  of  court-martial  procedure,"  by  referring  to  what  I 
have  already  stated,  namely,  that  graduates  of  every  training  camp 
have  studied  and  passed  an  examination  upon  the  Manual  for  Courts- 
Martial,  and  that,  therefore,  the  above  criticism  is  upon  its  face 
groundless.  The  roster  of  Army  officers  during  the  present  war  con- 
tains probably  thousands  of  young  men  who  have  been  admitted  to 
the  bar  and  enjoyed  the  benefit  of  a  longer  or  shorter  experience  as 
practitioners.  While  no  direct  proof  by  statistics  can  be  adduced. 
it  is  common  knowledge  that  the  commanding  generals  in  the 
assignment  of  counsel  (where  the  accused  does  not  make  his  own 
selection"!  have  usually  sought  to  utili/.e  the  services  of  those  officers 
who  have  already  had  legal  experience.  It  would  be  impracticable 
to  propose  that  no  officer  shall  be  assigned  to  the  defense  of  an 
accused  mi''  I  already  qualified  as  a  civilian  lawyer.  Given 

the  composition  of  the  officers'  roster,  all  that  can  be  expected  under 
the  circumstances  is  that  commanding  generals  shall  do  their  utmost 
to  select  men  of  those  qualifications,  if  available  within  the  unit; 
and  I  do  not  for  a  moment  doubt  that  such  was  the  constant  en- 
voi- of  the  appointing  authorities. 

The  other  part  of  this  criticism  is  that  in  capital  or  other  most 
serious  offenses  the  defending  counsel  has  been  officer  of  the  lowest 
commissioned  rank. 


MILITARY   JUSTICE   DURIXG   THE  WAR.  29 

In  so  far  as  it  seems  to  assert  that  the  defending  counsel  in  cases 
where  a  capital  sentence  was  actually  imposed  have  been  second 
lieutenants,  the  complete  facts  could  only  be  learned  by  a  lengthy 
collation  of  all  the  records.  But  of  the  twenty-one  records  now 
available  on  file,  in  which  a  capital  sentence  was  imposed,  the  de- 
fending counsel  were  as  follows:  In  four  cases  a  second  lieutenant, 
in  nine  cases  a  first  lieutenant,  in  six  cases  a  captain  (aided  in  three 
cases  by  a  lieutenant),  in  one  case  by  a  chaplain,  and  in  one  case  by 
a  major. 

In  so  far  as  the  assertion  refers,  not  to  offenses  in  which  a  capital 
sentence  was  actually  imposed,  but  in  which  the  offense  under  the 
military  code  is  liable  to  be  punished  with  death,  the  assertion  is  to  a 
large  extent  correct,  although  misleading.  In  time  of  peace  all 
offenses  (except  one  or  two  heinous  ones,  such  as  murder)  are  strictly 
limited  by  a  small  maximum  period  of  imprisonment,  which  for 
strictly  military  offenses  can  not  exceed  2J  years  for  ordinary  deser- 
tion, and  for  civil  offenses  are  graded  according  to  the  usual  civil 
limitations,  such  as  10  years  for  burglary  or  manslaughter  or  robbery. 
But  in  time  of  war  some  military  offenses  may  rise  to  a  degree  of 
danger  vital  to  the  safety  of  the  Army,  and  therefore  in  time  of  war 
the  death  penalty  is  reserved  in  a  number  of  military  offenses  as  a 
possible  maximum  penalty.  It  is,  I  believe,  a  fact  that  the  death 
penalty  has  been  imposed  by  courts  during  this  war  in  only  ninety-six 
cases,  of  which  approximately  one-half  were  for  military  offenses;  and 
that  in  all  of  these  cases  the  death  penalty  for  the  military  offenses 
was  subsequently  commuted  or  remitted.  But  it  remains  true  that  for 
the  principal  military  offenses  the  death  penalty  is  expressly  author- 
ized by  the  Articles  of  War  to  be  imposed  in  time  of  war.  In 
thousands  of  such  offenses  the  penalty  actually  imposed  (there  being 
no  minimum  prescribed  by  the  Articles  of  War)  has  been  only  a  few 
months  or  perhaps  a  few  years  of  imprisonment.  In  many  of  those 
cases  it  is  true  that  the  defense  of  the  accused  has  been  conducted  by 
officers  of  the  rank  of  second  lieutenants.  Just  what  proportion  of 
cases  this  represents  could  not  be  stated  without  a  complete  and 
special  examination  of  the  20,000  cases  of  general  courts-martial 
arising  since  April  6,  1917. 

But  assuming  that  the  proportion  is  a  substantial  one,  I  must 
point  out  that  the  situation  existing  in  the  camps  and  in  the  theatre 
of  war  presents  almost  insuperable  obstacles  to  any  other  practice. 
The  number  of  officers  available  for  taking  part  in  military  trials  is 
necessarily  limited,  for  the  active  duties  of  military  preparation  and 
operation  are  obviously  paramount.  The  main  object  of  the  Army  is 
victory,  not  trials.  Moreover,  in  the  composition  of  the  court  it  is 
plain  that  the  prime  requisite  is  to  procure  for  the  court  itself  the 


30  MILITARY    .TL'STU'l.    ni'KINi;    T1IK    WAK. 

most   experienced    officers  of    adequate   rank   a-;  a  guarantee  for  tho 
\\isdom  of  their  judgment.     Having  regard  for  "both  the>c  considn  .1 
lions,  it  therefore  becomes  a  matter  of  great  difficulty,  if  not  impossi- 
bility, to  secure  for  the  conduct  of  the  defense  officers  of  equally 
high  rank  with  the  court.     It  is  not  to  be  denied  thai,  if  it  were 
feasible  in  every  case  to  assign  for  the  defense  an  officer  of  equal 
rank  with  the  senior  officer  sitting  upon  the  court,  this  would  be  a 
desirable  measure.     But  no  one  who  has  any  acquaintance  at  all 
with  conditions  in  the  theatre  of  war  could  suppose  for  a  moment 
that  this  is  practicable.     Even  as  it  is,  the  organization  of  co; 
martial  makes  already  a  serious  drain  on  the  efficiency  of  the  strictly 
combatant  work  of  the  organization.     The  problem  is  a  difficult  one. 
It  may  be  that  some  means  can  bo  devised  for  strengthening  sys- 
tematically the  conduct  of  tbe  defense  in  courts-martial  in  re> 
to  the  rank  and  experience  of  the  officers  so  assigned.     But  that 
under  the  present  war  conditions  it  was  feasible  to  obtain  officers 
higher  rank  in  any  considerable  number  must  be  denied. 
Moreover,  it  is  at  this  point  that  the  military  system  offers  a  guar- 
/  antee  (not  found  in  the  civil  system)  of  protection  against  the  conse- 
quences of  such  inadequate  defenses  as  may  from  time  to  time  be 
\  found.     The  system  of  automatic  appeals,  already  described,  and  the 
\  thorough  scrutiny  of  the  record  given  in  the  Office  of  the  Judge 
Advocate  General  may  be  relied  upon  to  supply  that  protection  which 
in  civil  courts  is  usually  given  only  by  the  skilled  scrutiny  of  counsel 
for  defense  in  the  trial.     Whatever  point  of  law  might  have  been 
made  for  accused's  benefit  by  counsel's  objection,  and  has  failed  to  be 
made  through  his  ignorance,  can  be  and  is  habitually  detected  and 
enforced  during  this  appellate  scrutiny.     The  civil  doctrine  of  utiliz- 
ing only  points  raised  by  counsel's  exceptions  has  no  place  in  military 
appellate  procedure.     The  officers  of  the  Judge  Advocate  General's 
Office,  as  already  shown  above,  scrutinizes  the  record  and  insure  the 
observance  of  those  fundamental  rules  of  law  which  ordinarily  are 
watched  over  by  counsel  for  defense,  and  if  such  rules  of  law  are 
found  not  to  have  been  observed  the  record  is  disapproved  for  legal 
error,  regardless  of  whether  counsel  for  defense  took  notice  of  it  or 
not.     Virtually  this  appellate  review  performs  over  again  the  func- 
tions of  counsel  for  the  defense,  and,  not  only  in  technical  duty  but 
in  actual  spirit,  this  appellate  review  seeks  to  make  good  those  de- 
ficiencies of  defense  which  may  become  obvious  to  the  experienced 
scrutiny  of  the  appellate  officer.     It  is  in  this  appellate  review  that 
I  find  the  most  satisfactory  assurance  that  such  deficiencies  as  may 
have  from  time  to  time  occurred  through  the  inexperience  of  officers 
assigned  for  the  defense  have  been  adequately  cured. 


MILITARY   JUSTICE   DURING  THE  WAR.  31 

8.  THAT  A  PLEA  OF  GUILTY  is  KECEIVED  FROM  AN  ACCUSED 
ON  A  CHARGE  FOR  WHICH  THE  SENTENCE  OF  DEATH  MAY  BE 
IMPOSED. 

I  find  it  difficult  to  give  a  complete  statement  of  facts  in  answer 
to  this  criticism,  because  a  complete  answer  would  require  an  exami- 
nation of  all  the  20,000  .records  of  general  courts-martial  since  April 
6,  1917,  and  such  a  complete  examination  can  not  be  made  in  the 
time  alloted  me. 

In  what  proportion  of  cases  a  pica  of  guilty  has  been  received,  and 
in  what  fraction  of  that  proportion  this  offense  has  been  one  for 
which  the  death  penalty  might  have  been  imposed,  although  not 
actually  imposed,  is  impossible  to  say;  but  I  firmly  believe  that  the 
percentage  is  a  small  one.  The  common  instincts  of  fairness  and 
justice  which  form  the  motive  for  such  a  criticism  are  equally  enter- 
tained by  the  same  officers,  taken  recently  from  civilian  life,  who  sit 
upon  the  courts  as  judges. 

But  if  it  be  meant  in  the  above  assertion  that  when  a  plea  of  guilty 
has  been  received  it  has  been  customary  or  even  frequent  to  forego 
the  presentation  of  evidence  by  the  prosecution,  I  can  confidently 
assert  that  such  cases  have  not  occurred.  The  prosecution  has 
seldom  failed  to  adduce  the  requisite  evidence ;  and  whenever  it  has 
so  failed,  the  reviewing  authority  has  disapproved  the  record  for  such 
legal  error.  The  Manual  for  Courts-Martial  does  not  permit  (except 
in  the  very  minor  cases)  a  plea  of  guilty  to  exempt  a  prosecutor  from 
presenting  his  evidence.  I  quote  from  paragraph  154  of  the  Manual, 
page  72;  it  is  obvious  that  if  the  injunctions  of  the  Manual  are 
observed  (and  the  records  show  that  they  have  been)  a  plea  of  guilty 
does  not  signify  that  the  circumstances  of  the  case  were  not  thor- 
oughly examined,  with  a  view  to  ascertaining  both  the  exact  effect 
of  the  plea  as  well  as  the  extenuating  circumstances  which  might 
affect  the  sentence : 

In  cases  where  the  punishment  is  discretionary,  a  full  knowledge  of  the  circum- 
stances attending  the  offense  is  essential  to  the  court  in  measuring  the  punishment 
and  to  the  reviewing  authority  on  the  sentence.  In  cases  where  the  punishment  is 
mandatory,  a  full  knowlegde  of  the  attendant  circumstances  is  necessary  to  the  review- 
ing authority  to  enable  him  to  comprehend  the  entire  case  and  correctly  judge  whether 
the  sentence  should  be  approved  or  disapproved  or  clemency  granted.  The  court 
should  therefore  take  evidence  after  a  pka  of  guilty,  except  when  the  specification  is  so 
descriptive  as  to  disclose  all  the  circumstances  of  mitigation  or  aggravation.  When 
evidence  is  taken  after  a  plea  of  "guilty,"  the  witnesses  may  be  cross-examined,  evidence 
may  be  produced  to  rebut  their  testimony,  and  the  court  may  be  addressed  by  the  prosecution 
or  defense  on  the  merits  of  the  evidence  and  in  extenuation  of  the  offense  or  in  mitigation 
of  punishment.  After  a  plea  of  guilty,  the  accused  ivill  always  be  given  an  opportunity 
to  offer  evidence  in  mitigation  of  the  offense  charged,  if  he  desires  to  do  so. 

In  each  case  tried  by  a  general  court-martial  in  which  the  accused  enters  a  plea  of 
guilty  in  whole  or  in  part  as  to  any  charge  or  specification  the  president  of  the  court 
shall  explain  to  him  as  to  that  part: 


MILITAPY  JUSTICE  i.-rr.iNG  Tin:  WAR. 

Virtt.  Tln>  various  elements  which  constitute  tin1  offense  charred,  as  set  forth  in 
Chapter  XVII.  defining  the  punitive  articles  of  war;  and 

Second.  The  maximum  punishment  which  may  be  adjudged  l.y  ihe  court  f<-r  the 
offense  to  which  In-  has  pleaded  guilty. 

The  accused  will  tlien  be  asked  whether  lie  fully  under  B)  by  pleading 

guilty  to  such  a  charge  or  specification  he  admits  having  committed  all  tlie  elements 
of  the  crime  or  offense  charged  and  that  he  may  be  punished  as  stated.  If  he  replies  in 
the  affirmative,  the  plea  of  guilty  will  stand;  otherwise  a  plea  of  not  guilty  will  be 
•  •nterod.  The  explanation  of  the  president  and  the  reply  of  the  accused  thereto  shall 
appear  in  the  record.  The  pame  rule  will  apply  in  cases  tried  by  special  court-martial 
when  the  evidence  heard  is  made  of  record. 

When  the  accused  pleads  "guilty"  and,  without  any  evidence  being  introduced, 
makes  a  statement  inconsistent  with  his  plea,  the  statement  and  plea  will  bo  con- 
sidered together,  and  if  guilt  is  not  conclusively  admitted  the  court  u*ill  direct  the  entry 
of  a  plea  of  "not  guilty"  and  proceed  to  try  the  case  on  the  general  issue  thus  made.  The 
most  frequent  instances  of  inconsistency  are  in  cases  involving  a  specific  intent,  as 
in  desertion,  larceny,  etc.  In  such  cases,  where  after  a  plea  of  guilty  the  accused 
makes  a  statement,  the  latter  should  be  carefully  scrutinized  by  the  court,  and  if  in 
the  case  of  desertion  in  any  part  there  is  a  statement  that  the  accused  had  no  intention 
of  remaining  away,  that  he  exixvted  to  return  when  he  had  earned  some  money,  or 
that  when  arrested  he  was  on  his  way  back  to  his  organization,  etc..  or,  in  the  case  of 
larceny,  that  he  intended  to  return  the  property  alleged  to  have  been  stolen,  etc., 
the  court  should  direct  the  entry  of  a  plea  of  "  not  guilty."  but  the  criminality  of  an  intent 
once  formed  is  not  affected  by  a  subsequent  change  of  intent. 

9.  THAT  COMMANDING  (ii.NKKM.s.  As  REVIEWING  Ai  TIIORI- 
TIES,  SEND  BA<  K  FOR  RECONSIDERATION  JUDGMENTS  or  AC- 
QUITTAL. 

This  power  undoubtedly  does  exist;  and  it  is  occasionally  c  \cn-ised. 
But  only  a  brief  explanation  will  be  needed  to  show  that  it  by  no 
means  signifies  (as  the  criticism  would  imply)  a  subjection  of  the 
accused  to  injustice,  by  placing  the  arbitrary  discretion  of  the  com- 
manding officer  outside  and  above  the  guaranties  of  lawful  procedure. 

The  reviewing  authority,  i.  e.,  ordinarily  the  commanding  general 
who  has  convened  the  court,  represents  essentially  a  first  appellate 
stage.  No  sentence  of  court-martial  can  be  carried  into  execution 
until  it  lias  been  approved  by  the  reviewing  authority,  i.  e.,  neither 
acquittal  nor  conviction  is  effective  until  the  reviewing  authority  has 
scrutinized  the  record  and  given  it  approval.  The  very  object  of 
(his  institution  is  to  secure  the  due  application  of  the  law,  and  to 
surround  the  accused  with  an  additional  protection  independent  of 
tin*  trial  court.  This  power  to  approve  or  disapprove  a  finding  is 
given  great  flexibility  by  the  Articles  of  War;  it  includes  the  power 
to  approve  a  finding  of  guilty  of  a  lesser  offense  and  the  power  to 
approve  or  disapprove  the  whole  or  any  part  of  the  sentence.  In 
this  respect  the  military  appellate  code  differs  from  the  usual  civil 
code.  Incidentally,  this  power  to  disapprove  includes  the  power  to 
disapprove  a  sentence  of  acquittal  and  to  return  the  record  for  recon- 
sideration by  the  court.  But,  intrinsically,  nothing  more  is  here 


MILITARY   JUSTICE   DURING   THE  WAR.  33 

implied  than  the  court  is  to  reconvene  and  reconsider  its  judgment 
freely  and  independently.  It  is  in  no  sense  a  measure  which  subjects 
the  court-martial  to  the  command  of  the  reviewing  authority  in  fram- 
ing the  tenor  of  its  judgment  upon  such  reconsideration;  for  the  court 
is,  under  the  law,  entirely  at  liberty  to  adhere  to  its  original  decision. 

That  this  power  is  a  useful  one,  and  that  it  is  not  in  fact  in  any 
appreciable  number  of  cases  so  exercised  as  to  amount  to  an  abuse 
of  the  commanding  general's  military  prestige,  will,  I  think,  appear 
from  the  figures  to  be  gathered  from  the  records.  In  the  first  place, 
the  power  is  exercised  in  the  vast  majority  of  cases  solely  for  the 
purpose  of  making  formal  corrections  of  the  record;  for  example,  to 
enable  the  fact  to  be  shown,  if  it  was  a  fact,  that  a  certain  member  of 
the  court  was  present  or  was  qualified  or  that  a  witness  was  sworn, 
or  the  like  formal  correction  which  will  make  the  record  of  the  trial 
correspond  to  the  facts.  In  the  second  place,  the  exercise  of  the 
power  in  cases  of  an  initial  judgment  of  acquittal  has  been  rare 
indeed;  and  in  those  few  cases  the  trial  court,  far  from  exhibiting  a 
supple  obedience  to  the  supposed  hint  of  the  commanding  officer  has, 
in  the  great  majority  of  cases,  adhered  to  its  original  judgment. 

For  the  purpose  of  ascertaining  the  facts,  an  examination  was 
recently  made  in  my  office  of  1,000  cases  (taking  the  first  thousand  as 
they  came  in  the  files)  thus  returned  by  reviewing  authorities  to  trial 
courts  for  revision.  Out  of  these  1,000  cases,  the  instances  in  which 
the  original  judgment  was  one  of  acquittal  numbered  95.  Of  these 
95  acquittals,  39  were  returned  only  for  formal  corrections.  Of  the 
remaining  56,  the  court  adhered  to  its  original  acquittal  in  38  cases; 
and  in  only  18  cases  was  the  judgment  of  acquittal  revoked  upon 
reconsideration  and  the  accused  found  guilty  of  any  offense.  It 
seems  plain,  therefore,  that  in  no  appreciable  number  of  cases  has 
the  exercise  of  this  power  resulted  in  a  change  of  verdict  upon  recon- 
sideration; and  it  would  be  going  further  than  any  natural  pre- 
sumption would  permit  us,  if  we  were  to  infer  that  those  changes 
involved  substantial  injustice  to  the  accused.  My  own  experience 
in  the  field  can  recall  more  than  one  case  in  which  the  verdict  of 
acquittal  was  notoriously  unsound,  and  in  which  the  action  of  the 
commanding  general  in  returning  the  case  furnished  a  needed  oppor- 
tunity for  doing  full  justice  in  the  case. 

But  even  though  the  power  is  a  useful  one,  and  even  though  the 
facts  show  that  it  is  seldom  exercised  in  cases  permitting  an  inference 
that  possible  injustice  was  done,  and  even  though  the  facts  demon- 
strate that  the  power  does  not  necessarily  signify  a  subjection  of  the 
court-martial  to  the  will  of  the  commanding  general,  nevertheless  it 
can  not  be  denied  that  the  practice  differs  radically,  from  the  tradi- 
tions of  civil  justice.  Whether  the  practice  in  civil  justice  is  not  too 


34  MILITARY    .TU.STKK    I'URIXO    THK    WAR. 

scrupulous  ill  favor  of  the  accused,  and  whether  the  future  may  not 
rather  witness  some  change  of  civil  practice  in  the  direct  ion  of  the 
traditional  military  practice,  I  will  not  attempt  to  say.  But  the 
present  military  practice  is  ono  which  on  first  impression  is  repugnant 
to  tho  accustomed  methods  in  ciyil  trials,  and  for  that  reason  I  am 
ready  to  concede  that  the  time  has  come  to  approximate  the  two 
methods.  In  the  British  system,  that  change  was  made  some  \ 
hcfore  the  onset  of  the  present  war.  I  am  reudy  to  recommend  a 
similar  change  in  our  own  practice.  Although  the  power  is  a,  useful 
one,  nevertheless,  on  the  other  hand,  it  does  not  appear  that  it  is  a 
necessary  or  fundamental  one  to  the  maintenance  of  military  disci- 
pline; and  in  that  situation  the  solution  may  well  he  to  assimilate 
the  practice  as  nearly  as  may  be  to  the  usual  civil  practice.  This 
would  mean  that  wherever  the  initial  judgment  is  one  of  acquittal 
(either  of  the  whole  offense  or  of  an}r  particular  charge),  the  reviewing 
authority  should  not  have  power  to  disapprove  the  finding  of  not 
guilty;  and  that,  for  the  same  reason,  the  reviewing  authority 
should  not  have  the  power  to  revise  a  sentence  upward. 

10.  THAT  THK  JUDGMENT  OF  THE  COURT  is  KEPT  SECEET 
UNTIL  AFTER  THE  ACTION  OF  THE  REVIEWING  AUTHORITY  is 
TAKEN,  EVEN  WHEN  THE  INITIAL  JUDGMENT  is  AN  ACQUITTAL. 

It  is  obvious  that  the  rule  upon  which  this  criticism  is  founded  is 
a  natural  consequence  of  the  rule  just  commented  upon,  viz,  that 
commanding  generals  as  reviewing  authorities  may  send  back  cases 
for  reconsideration  by  the  court  even  after  a  judgment  of  acquittal. 
If  the  initial  judgment  of  the  trial  court  is  subject  to  change  by  the 
reviewing  authority,  it  is  obvious  that  its  tenor  should  not  be  dis- 
closed until  after  the  reviewing  authority  has  acted  and  has  so  noti- 
fied the  trial  court.  If,  therefore,  the  above  rule  is  to  be  changed  it 
would  follow  that  the  present  rule  should  also  be  changed,  for  the 
one  depends  naturally  upon  the  other.  In  view  of  what  has  been 
said  above  as  to  the  proposed  alteration  of  the  rule  permitting  the 
reviewing  authority  to  correct  and  change  a  judgment  of  the  trial 
court,!  frankly  admit  that  the  corresponding  change  should  be  made 
in  the  present  rule,  and  that  upon  a  judgment  of  acquittal,  which 
would  therefore  be  final  and  not  subject  to  change  upon  review,  there 
is  no  reason  why  an  immediate  announcement  should  not  be  made, 
precisely  as  in  the  case  of  the  verdict  of  an  ordinary  civil  jury.  I  am 
pointing  out  that  the  rule  here  criticized  is  merely  a  corollary  of  the 
other  rule,  and  that  its  maintenance  under  the  system  hitherto  in 
force  has  therefore  not  been  subject  to  criticism. 


MILITARY  JUSTICE  DURING  THE  WAR.  35 

11.  THAT  THE  SENTENCES  IMPOSED  BY  COURTS-MARTIAL  ARE 
AS  A  RULE  EXCESSIVELY  SEVERE. 

In  considering  the  severity  of  sentences  (and  this  topic  has  been  the 
main  theme  of  the  criticisms  uttered  on  the  floor  of  Congress)  I  must 
make  my  comments  in  the  following  order: 

(a)  The  sentences  as  they  have  actually  been  imposed: 

(&)  The  reasons  for  those  sentences;  and 

(c)  The  measures  now  taken  to  give  proper  mitigation  or  re- 
mission of  sentences. 

(a)  In  considering  the  severity  of  sentences,  it  is,  of  course,  neces- 
sary to  examine  separately  the  different  offenses,  since  obviously  the 
appropriate  punishment  varies  widely  for  offenses  of  different  moral 
culpability  and  different  danger  to  military  discipline.  Space  does 
not  permit  me  here  to  set  forth  the  facts  for  all  of  the  offenses  and 
sentences  covered  by  the  general  courts-martial  since  April  6. 

I  handed  to  you  on  February  12,  a  complete  table  of  data  as  to  the 
length  of  sentences,  for  the  period  October,  1917,  to  September,  1918, 
covering  the  nine  principal  military  offenses  of  desertion,  absence 
without  leave,  sleeping  on  post,  assaulting  an  officer  or  a  noncom- 
missioned officer,  disobeying  an  officer  or  a  noncommissioned  officer, 
mutiny,  and  disobeying  a  general  order  or  regulation.  As  this  table 
is  too  lengthy  for  inclusion  in  this  letter  I  shall  content  myself  by 
taking  the  three  most  typical  offenses:  Desertion,  absence  without 
leave,  and  disobeying  an  officer. 

(1)  Desertion.— No  one  can  approach  the  subject  of  sentences  for 
desertion  in  time  of  war  without  keeping  in  mind  the  solemn  and 
terrible  warning  recorded  expressly  for  our  benefit  by  Brig.  Gen. 
Oakes,  acting  assistant  provost  marshal  general  for  Illinois,  as  set 
forth  in  his  report  printed  in  the  Report  of  the  Provost  Marshal 
General  for  the  Civil  War  (Part  II,  p.  29).  In  impressive  language 
he  lays  the  following  injunction  upon  us : 

Incalculable  evil  has  resulted  from  the  clemency  of  the  Government  toward  de- 
serters. By  a  merciful  severity  at  the  commencement  of  the  war  the  mischief  might 
have  been  nipped  in  the  bud,  and  the  crime  of  desertion  could  never  have  reached 
the  gigantic  proportions  which  it  attained  before  the  close  of  the  conflict.  The  people 
were  then  ardent  and  enthusiastic  in  their  loyalty,  and  would  have  cheerfully  and 
cordially  assented  to  any  measures  deemed  necessary  to  the  strength  and  integrity  of 
the  Army.  They  had  heard  of  the  ' '  rules  and  articles  of  war, ' '  and  were  fully  prepared 
to  see  *  *  *  that  deserters  from  the  Army  would  be  remorselessly  arrested,  tried 
by  court-martial,  and,  if  guilty,  be  forthwith  shot  to  death  with  musketry. 

This  was  unquestionably  the  almost  universal  attitude  of  the  public  mind  when 
hostilities  began,  and  the  just  expectations  of  the  people  should  not  have  been  disap- 
pointed. Arrest,  trial,  and  execution  should  have  been  the  short,  sharp,  and  decisive 
fate  of  the  first  deserters.  *  *  *  The  Government  was  far  behind  the  people  in 
this  matter,  and  so  continued,  until  long  and  certain  impunity  had  thrown  such 
swarms  of  deserters  and  desperadoes  into  every  State  that  it  was  then  too  late  to 
avert  the  calamity.  *  *  *  I  state  these  things  so  that,  if  ve  have  another  war. 


36  Mii.iTAKY  .irsTici:  nuiuxt;  Tin;  WAR. 


Hie  G«  •  ><jht  '.  enfi.ive  military  law, 

strike  hard  Mows  at  tin-  outset,  tour  up  tin-  national  mind  ul  once  to  a  reali/alion  that 

and  In-  sure  that  such  a  jmlicy  will  be.  indorsed  and  i  l>y  tin-  /• 

There  arc  otl.  lions  to  be  made  in  respect  to  deserters,  but  the  one  I  have 

already  advanced  —  the  nonindorsciucnt  of  the  penalties  provided  by  the  military 
r.idr  t'er  tin-  crime  of  desertion.  <  ~\*'<  -ially  at  the  beginning  —  is,  beyond  all  question, 
the  prand  fundamental  cause  of  the  unparalleled  increase  of  that  dime,  and  of  the 
inability  of  district  provost  marshals.  with  their  whole  force  of  special  ;e_-.  nt*  and 
detectives,  to  rid  the  country  of  deserters. 

This  solemn  warning  was  naturally  in  our  minds  ;it  the  opening 
of  the  present  war.  Bui,  in  spile,  of  ils  urgency,  it  was  decided  to 
exhibit  our  faith  in  the  American  people,  and  to  place  our  trust  in 
thai  loyalty  and  devotion  to  duty  which  we  felt  sure  would  character- 
ize the  vast  majority  of  to-day's  young  American  manhood.  We 
believed  that  the  "short,  sharp,  and  decisive  fate  of  the  first  desert- 
ers" should  not  be  the  extreme  penalty  as  urged  by  Gen.  Oakes. 
And  the  view  was  generally  accepted  in  the  Army  that  terms  of 
imprisonment  should  be  ordinarily  deemed  the  adequate  repressive 
measure  for  the  few  who  might  need  it.  And  it  is  a  fact  that  of  the 
(approximately)  3,000  convictions  for  desertion,  during  the  war,  the 
scnlence  of  death  was  imposed  in  only  L'  1  cases.  Mid  in  every  such 
it  was  commuted  or  remitted. 

It  must,  therefore,  be  kept  in  mind  at  the  outset  that  the  refusal 
to  adopt  the  policy  of  death  sentences  for  desertion  was  in  it*  elf  a 
r<  imdiation  of  tlic  pollen  of  extreme  severity;  and  that  the  practice  of 
limiting  desertion  sentences  to  terms  of  imprisonment  is  in  itself 
the  adoption  of  a  policy  of  leniency.  Reproach  for  severity  must 
deal  with  the  fact  that  the  policy  adopted  disregarded  both  the 
extreme  penalty  authorized  by  Congress  and  the  warnings  of  the 
Civil  War. 

Turning,  then,  to  the  recorded  facts,  we  find  in  the  table  that  the 
total  number  of  convictions  for  desertions  for  the  year  October, 
1917-September,   1918,  was  2,025;  that  the  average  sentence 
7.58  years;  that  nearly  24  per  cent  of  these  sentences  were  for  less 
than  '2  A  ears;  that  64  per  cent  were  for  less  than  10  years;  and  • 
only  35.90  per  cent  were  for  a  greater  period  than  10  years.     The 
Article  of  War  reads: 

Any  perron  who  deserts  shall,  if  the  offense  be  committed  in  time  of  war,  suffer 
.  or  such  other  punishment  as  the  court-martial  may  direct. 

It  would  seem,  therefore,  that  in  point  of  severity  the  result  of 
courts-martial  sentences  for  desertion  can  not  be  charged  with  erring 
on  the  side  of  severity. 

You  will  notice  that  I  do  not  here  attempt  to  account  for  the 
justice  of  individual  cases.  Certain  of  the  sentences  for  25  years,  or 
even  for  lesser  periods,  are  open  to  criticism  as  excessively  severe 
under  the  circumstances  of  the  individual  case.  But  it  must  be 


MILITARY   JUSTICE   DURING  THE  WAR.  37 

kept  in  mind  that  these  trials  and  sentences  were  found  legally  valid 
by  the  Judge  Advocate  General's  Office;  that  the  only  issue  of  doubt 
that  could  arise  concerns  the  quantum  of  the  sentence;  and  that  the 
scrutiny  of  the  clemency  section  in  the  Military  Justice  Division  of 
the  office  may  be  relied  upon  to  detect  cases  of  excessive  severity 
before  any  excessive  portion  of  such  a  sentence  has  been  served.  But 
the  excessive  severity  of  an  individual  sentence  is  not  the  question 
here;  that  question  would  call  for  the  scrutiny  of  the  particular  case. 
The  question  here  is  of  general  conditions.  What  the  above  figures 
show  in  respect  to  general  conditions,  or  the  trend  of  conditions,  is 
that  the  practice  has  been  one  of  relatively  moderate  penalties  instead 
of  the  severest  one  permissible  under  the  law. 

(2)  Absence  without  leave. — Absence  without  leave  is  an  offense 
which  represents,  in  many  instances,  cases  of  actual  desertion;  but, 
owing  to  the  movements  of  the  military  unit  and  thus  the  difficulty 
of  obtaining  the  necessary  technical  proof,  the  actual  deserter  is 
frequently  convicted  of  no  more  than  an  absence  without  leave.    It 
is,  therefore,  plain  that  the  offense  of  absence  without  leave  may, 
upon  its  circumstances,  merit  an  extremely  severe  penalty,  equal  to 
that  of  desertion.    In  time  of  war  this  offense  may  lawfully  be  pun- 
ished by  any  penalty  short  of  death;  in  time  of  peace  a  presidential 
order  limits  the  maximum  penalty  to  six  months'  confinement. 

For  the  year  ending  September,  1918,  the  total  convictions  for  this 
offense  number  3,362;  the  average  sentence  was  1.59  years  (or  only 
three  times  the  small  maximum  allowed  in  peace  times);  11  per  cent 
of  the  offenses  received  no  penalty  of  imprisonment;  67  per  cent 
received  a  sentence  of  less  than  two  years  imprisonment;  and  only 
22  per  cent  received  a  penalty  of  more  than  two  years  in  prison. 
When  it  is  remembered,  as  above  pointed  out,  that  this  offense  is  in 
many  cases  virtually  the  offense  of  an  actual  deserter,  it  will  be  seen 
that  the  number  of  the  sentences  over  two  years  is  not  dispropor- 
tionate to  the  probable  ratio  of  cases  individually  calling  for  the 
higher  penalties.  An  average  sentence  of  1.59  years  for  this  offense, 
committed  in  time  of  war,  can  not  be  deemed  an  exhibition  of  se- 
verity, where  in  fact  the  act  of  Congress  establishing  the  Articles  of 
War  leaves  the  court-martial  absolutely  untrammelled  (short  of  the 
death  sentence)  in  the  penalty  to  be  fixed  to  this  offense. 

(3)  D'isoleying  an  officer. — The  offense  of  disobeying  a  superior 
officer  is  punishable,  under  the  Articles  of  War,  by  ''death  or  such 
other  punishment  as  the  court-martial  may  direct."     The  total  num- 
ber of  convictions  for  this  offense  was  785;  the  average  sentence  was 
for  4.34  years;  6  per  cent  of  offenses  were  punished  by  no  imprison- 
ment; 43.69  were  punished  by  confinement  of  less  than  2  years;  and 
a  trifle  over  50  per  cent  were  punished  by  some  period  greater  than 
2  years,  there  being  one  death  sentence  and  18  sentences  for  25 


38  MILITARY   JUSTICE   DURING   Till:   WAR. 

Years  or  more,  Comparing  the  absolutely  unlimited  nature  of  tho 
punishment  permitted  by  tho  Articles  of  War  to  be  imposed  by  tho 
court-martial,  and  observing  that  f>0  per  cent  of  the-e  sentences  \ 
for  periods  of  under  2  years,  it  can  not  be  that  the  tribunal:-  appear 
to  bo  seeking  to  exerci-e  the  maximnin  of  severity  allowable,  but 
rather  the  contrary. 

Moreover,  in  interpret ing  these  sentence.-,  for  tiie  ofTen-e  of  dis- 
obedience of  an  oflieer.  it  is  worth  while  to  remind  the  civilian  public 
that  little  or  nothing  turns  upon  the  nature  of  the  command  itself 
which  is  disobeyed.  Much  has  been  made  in  public  discussion  of 
one  or  two  instances  in  which  the  subject  of  command  was  apparently 
of  trivial  consequence;  for  example,  a  command  to  an  enlisted  man 
to  give  up  some  tobacco  unlawfully  in  his  possession,  or  a  command 
to  clean  a  gun.  But  in  military  life,  obviously  it  is  not  the  thing 
commanded  that  is  material;  it  is  the  act  of  deliberate  d  ice. 

Deliberate  disobedience  in  one  thing,  if  unchecked,  means  deliberate 
disobedience  in  any  and  all  things.  It  was  a  condition  of  deliberate 
disobedience,  in  small  and  great  things  alike,  which  caused  the  Rus- 
sian Army  to  melt  away  and  transformed  Russia  into  the  home  of 
Bolshevism.  The  military  officer  does  not  rule  by  violence,  but  by 
moral  sway.  He  is  able  to  organize  his  men  upon  the  battlefield 
only  because  he  can  be  confident  that  every  command  of  his  in  mat- 
ters great  or  small  will  result  in  instant  and  unquestioned  obedience. 
Hence,  an  act  of  military  disobedience  is  a  symptom  as  alarming  to 
the  military  commander  as  is  the  first  incipient  cancer  cell  to  the 
surgeon — a  warning  that  the  knife  must  soon  be  applied.  The  Wai- 
Department  must  invoke  and  expect  the  sympathy  and  support  of 
an  enlightened  public  in  realizing  that  the  offense  of  disobedien* 
to  be  ranked  among  the  cardinal  offenses  of  the  soldier  and  recj' 
the  most  rigid  measures  for  its  repression. 

In  the  foregoing  comments,  it  will  be  noticed  that,  since  a  charge 
of  excessive  severity  implies  tho  habitual  resort  to  a  maximum 
standard  allowable  under  the  law,  the  standard  here  to  be  taken  mu.-l 
of  necessity  be  the  standard  set  by  the  Articles  of  War  as  adopted  by 
the  act  of  Congress.  Judging  by  this  standard,  the  practices  of  the 
court-martial,  to  any  candid  observer,  must  be  vindicated  from  the 
charge  of  the  habitual  employment  of  severity;  rather  have  they  pro- 
ceeded in  a  direction  of  a  lenient  use  of  their  discretion. 

I  must  freely  admit  that,  in  any  discussion  of  the  severity  of  sen- 
tences, notions  of  severity  are  so  widely  different  that  it  will  be 
hopeless  to  satisfy  the  standards  of  all  varieties  of  critics.  There 
exists  to-day,  in  some  minds  apparently,  n  sentimentality  towards 
offenders  of  every  sort,  which  we  could  never  expect  to  satisfy  without 
a  virtual  undermining  of  the  entire  criminal  law,  whether  military  or 
civil.  I  received  recently  a  letter,  complaining  of  the  " inhuman  and 
outrageous  punishments  administered  for  trivial  matters";  this  ex- 


MILITARY   JUSTICE   DURING   THE  WAR.  39 

pressioii  being  used  of  a  court-martial  sentence  of  ten  years  for  con- 
spiracy to  rob.  In  the  particular  case,  four  soldiers,  out  on  leave  in 
a  city  adjacent  to  a  military  camp,  assaulted  with  a  pistol  and 
violently  beat  a  fellow  soldier  at  midnight  in  a  vacant  lot,  for  the 
purpose  of  obtaining  his  money  by  force;  and  upon  his  raising  an 
outcry  they  ran  away,  and  his  wounds  were  attended  to  by  the 
military  police.  To  apply  the  term  "trivial"  to  this  act  of  cowardly 
violence,  and  the  term  "inhuman"  to  the  sentence  of  ten  years,  indi- 
cates such  a  singular  standard  of  moral  judgment  that  it  would  bo 
impossible  to  reach  an  agreement,  in  estimating  the  severity  of  the 
sentence,  with  those  who  are  willing  to  acknowledge  such  a  standard 
of  judgment.  I  am  assuming,  in  what  I  have  now  to  say,  that  the 
idea  of  severity  is  always  to  be  interpreted  in  the  light  of  a  rational 
standard  of  moral  judgment  based  upon  the  danger  and  heinousness 
of  the  offender's  act  in  comparison  with  the  sentence  imposed. 

I  close  this  comment  with  a  forceful  quotation  from  a  recent 
editorial  in  a  leading  daily  journal: 

When  a  soldier  goes  absent  "without  leave,  deserts  his  post  of  duty  to  see  a  dying 
father,  he  does  so  because  his  own  personal  desires  are  stronger  than  his  sense  of 
responsibility  to  his  country.  It  may  be  a  hard  thing  to  give  up  seeing  a  dying  father, 
but  it  is  a  harder  thing  to  give  up  running  away  in  the  face  of  the  enemy. 

That  is  what  military  justice  is  about.  The  sole  preoccupation  of  any  army,  wher- 
ever it  is,  is  to  train  its  men  and  keep  them  trained  to  obey  the  will  of  the  commander 
under  the  most  trying  possible  circumstances  and  serve  the  will  of  the  Nation.  If 
disobedience  had  been  tolerated  in  the  United  States,  our  Army  in  Europe  would  not 
have  captured  the  St.  Mihiel  salient  nor  fought  six  weeks  in  the  Argonne. 

An  army  to  be  successful  in  the  field  must,  from  the  moment  it  begins  to  train  at 
home,  have  absolute  control  of  its  discipline. 

(&)  The  question  may  still  be  asked,  however,  whether  even  for 
these  serious  military  offenses  those  sentences  greater  than,  let  us 
say,  5  or  10  years  were  necessary  for  the  morale  of  the  Army. 

I  must  premise  by  pointing  out  first  that  these  long  sentences 
represent  only  a  minute  fraction  in  the  mass  of  court-martial  sen- 
tences, and,  secondly,  that  the  long  periods  of  years  named  in  those 
sentences  were  only  maximum,  and  were  therefore  nominal  only. 
.  As  to  the  first  point,  I  call  attention  to  the  total  number  of  sen- 
tences for  a  year,  including  trials  in  all  grades  of  courts.  These  were 
approximately  240,000,  of  which  the  military  offenses  were  at  least 
200,000  in  round  numbers.  In  these  200,000  sentences  the  vast 
majority,  probably  about  185,000,  were  imposed  in  summary  courts, 
and  those  could  not  by  law  exceed  three  months.  Another  10,000, 
approximately,  were  in  special  courts,  and  those  could  not  have  ex- 
ceeded six  months.  Some  7,000  were  in  general  courts,  the  only 
court  authorized  to  impose  a  sentence  of  higher  than  six  months. 
Now,  for  the  year  October  1,  1917,  to  September  30,  1918,  the  records 
of  this  office  show  that  there  were  only  532  sentences  for  a  period 
of  15  years  or  more;  that  is,  less  than  three-tenths  of  1  per  cent  of 
the  over  200,000  trials  for  military  offenses.  And  there  were  only 
about  2;200  sentences  for  five  years  or  more,  or  a  trifle  more  than  1 


40  MII.ITAKV  .irsTici:  i-rnixc  THK  WAR. 

per  cent  of  the  200,000  sentences  for  military  offenses.  If,  therefore. 
anything  is  found  to  be  wrong  about  this  group  of  severe  sentei, 
the  wrongness  can  only  affect  a  very  small  fractional  corner  in  the 
area  of  military  justice.  There  may  be  at  tliis  moment  532  cases 
of  smallpox  in  the  population  of  the  metropolis  of  Manhattan,  with 
more  than  4,000,000  inhabitants;  but  this  does  not  signify  that 
there  is  any  doubt  as  to  the  general  healthy  immunity  of  the  metrop- 
olis against  that  plague. 

The  second  point  above  mentioned  is  that  these  long  periods  of 
years  named  in  the  sentences  were  in  effect  nominal  only.  There 
being  no  minimum  number  of  years,  the  offender  may  be  release.! 
at  any  time  by  reduction  or  remission  of  sentence  on  recommenda- 
tion of  the  clemency  section  of  this  office,  where  the  offense  is  a 
purely  military  one.  That  this  is  not  merely  a  possibility,  but  an 
actuality,  will  be  seen  from  the  fact  later  to  be  cited,  that  nearly 
10  per  cent  of  the- 12,000  sentences  for  the  last  calendar  year  have 
in  fact  been  selected  for  remission  or  mitigation,  and  that  in  those 
sentences  an  average  of  90  per  cent  of  the  total  periods  has  been 
cut  off;  for  example,  of  the  2,035  sentences  for  desertion,  some  577, 
averaging  a  sentence  of  3.80  years,  were  selected  for  reduction,  and 
this  average  was  reduced,  on  the  recommendation  of  my  office,  to 
an  average  of  three  months.  In  other  words,  the  imposition  of  a 
2.")-year  sentence  does  not  signify  that  25  years  of  a  sentence  will  be 
served;  the  experience  of  the  year  1918  having  shown  that  of  the  sen- 
tences selected  for  reduction  only  10  per  cent  of  the  term  is  actually 
served.  It  is  in  this  sense  that  I  refer  to  these  long-term  figures 
for  the  maximum  duration  as  merely  nominal. 

As  an  illustration  conveniently  at  hand,  let  me  take  the  four  cases 
cited  by  Senator  Chamberlain  as  illustrating  excessive  severity  of 
court-martial  sentences;  he  cited  the  case  of  a  25  years'  sentence  for 
absence  without  leave,  another  of  15  years  for  the  same  offense,  and 
two  cases  of  10  years  for  sleeping  on  post.  And  yet  the  records  of 
this  office  show  that  in  two  of  these  four  cases  the  Judge  Advocate 
General  had  advised  that  there  was  no  legal  objection  to  their  restora- 
tion to  duty,  on  December  10  and  December  12,  1918,  respectively, 
two  weeks  or  more  prior  to  the  date  of  the  Senator's  speech  in  Con- 
-;  and  the  records  of  The  Adjutant  General's  Office  show  these 
men  actually  restored  to  duty  on  December  23,  1918,  one  full  week 
before  the  day  when  the  Senator  arose  to  complain  of  the  severity  of 
these  cases;  and  all  of  this  in  the  course  of  the  normal  operation  of  the 
system.  These  illustrations  point  to  what  I  mean  in  saying  that  the 
long  term  named  in  the  sentence  is  merely  nominal,  in  that  the 
offender  may  be,  and  in  practice  frequently  is,  restored  to  duty  at  an 
early  period  of  a  few  months  or  more,  totally  regardless  of  the  long 
period  named  in  the  sentence. 

Why  then  (it  may  be  asked)  was  it  necessary  or  wise  to  name  such 
long  maximum  terms  in  the  sentence?  The  answer  here  must  be 


MILITARY   JUSTICE   DURING   THE   WAR,  41 

sought  in  the  necessities  of  discipline  while  our  Army  was  being 
raised,  and  in  the  just  apprehensions  of  responsible  officers  over  the 
fulfillment  of  their  huge  task.  Half  a  million  men  were  taken  by 
draft  in  1917,  fresh  from  the  associations  of  civil  life;  nearly  another 
half  million  were  entering  by  enlistment ;  and  before  three-quarters  of 
the  year  1918  had  passed  nearly  four  million  men  had  been  taken 
into  the  Army  and  were  in  the  process  of  training.  This  training  was 
conducted  under  circumstances  of  urgent  haste  never  before  known 
in  our  history — for  the  tide  of  battle  was  going  against  the  allies,  and 
the  anxieties  of  the  civilized  world  awaited  breathlessly  the  arrival  of 
our  troops.  To  make  good  soldiers  out  of  this  huge  and  undisciplined 
mass,  in  an  average  period  of  three  or  four  months  for  each  contingent, 
was  one  of  the  most  extraordinary  feats  ever  accomplished  in  the 
history  of  military  training ;  and  it  has  testified  in  the  highest  degree 
to  the  adaptability  and  versatility  of  the  American  character.  But 
it  required  urgent  haste,  and  while  it  was  going  on  the  curtain  was 
not  raised  upon  the  future,  and  the  glorious  results  which  now  lie 
before  us  were  still  in  the  realm,  of  doubt. 

Our  officers,  charged  with  the  duty  of  bringing  these  undisciplined 
men  into  immediate  readiness  for  battle,  were  weighted  with  anxiety, 
day  and  night,  at  the  possibilities  of  failure.  The  one  imperative 
necessity  was  to  inculcate  the  sentiment  of  obedience — obedience 
instant  and  absolute.  For  those  few— and  they  were  less  than  15,000 
out  of  4,000,000 — who  committed  serious  military  offenses,  and  thus 
showed  themselves  recalcitrant  to  the  requirements  of  military 
discipline,  some  fonn  of  absolute  moral  compulsion  was  necessary. 
Whether  that  moral  compulsion  ought  to  take  the  shape  of  a  sen- 
tence of  2  years  or  10  years  or  20  years  was  a  matter  about  which  it 
would  have  been  dangerous  to  speculate.  The  situation  called  for 
an  absolute  certainty.  The  sentences  must  be  such  that  they 
imported  for  any  disobediently  disposed  soldier  a  penalty  which 
would  be  absolutely  compelling.  When  those  officers  selected  occa- 
sionally (and  the  percentage  of  cases  was  extremely  small)  a  long- 
term  sentence  which  should  have  this  imperative  significance,  they 
knew  that  this  was  only  a  maximum  term  and  that  there  was  no 
minimum,  and  that  an  early  release  would  be  easily  earned  by  those 
who  deserved  it.  And  I  can  not  bring  myself  to-day,  nor,  I  think, 
can  any  man  who  will  reflect  on  that  situation,  to  question  now  the 
wisdom  of  their  judgment.  And  I  will  even  go  so  far  as  to  say  that 
probably  none  of  these  officers  supposed  for  a  moment  that  these 
long  terms  would  ever  actually  be  served.  It  was  their  business 
and  duty  to  impose  a  compelling  sense  of  discipline,  and  they  chose 
those  terms  which,  in  their  judgment,  would  do  so.  And  it  was  not 
for  them  to  undermine  the  effect  of  their  discipline  by  announcing 
that  none  of  these  sentences  need  be  served  a  moment  longer  than 
the  exigency  of  the  war  required.  They  knew  that,  if  the  danger 


42  .MILITAUY  .irsTici:  nunixc;  THK  WAR. 

should  pa>s  and  if  victory  should  crown  their  efforts,  the  authorities 
of  the  Army,  and  particularly  the  scrutiny  of  my  ollice,  \vould  see  to 
it  that  the  sentences  were  appropriately  cut  down.  And  I  think  it 
can  be  safely  asserted  that,  so  far  as  there  is  anywhere  an  individual 
long-term  sentence  that  could  have  been  deemed  e\ce— ive,  the  man 
who  received  that  sentence  has  not  yet  served  a  single  day  of  the 
exce— i\v  period.  In  other  words,  if  an  individual  injustice  was  done 
in  the  length  of  period  imposed,  the  injustice  was  never  one  which 
could  not  he  corrected  before  it  became  in  fact  an  injustice. 

How  thoroughly  my  office  is  now  undertaking  to  apply  this  cor- 
rective in  proper  cases  I  will  later  mention.  But  I  am  concerned 
now,  in  these  days  of  international  safety  and  of  national  demobili- 
zation, to  carry  back  in  retrospect  the  minds  of  all  reflecting  citizens 
to  the  period  of  1917,  when  the  fate  of  the  world  trembled  in  the 
balance  and  the  embryo  armies  of  the  United  States  were  the  hope 
of  civilization  for  turning  that  balance  in  the  direction  of  world 
rescue.  The  huge  responsibility  of  preparing  these  armies  almost 
over  night  lay  upon  these  men  who  administered  military  discipline. 
JI<>w  magnificently  they  discharged  that  task  has  been  shown  by  the 
results  of  the  battle  field.  I,  in  common  with  all  other  intelligent 
citizens,  shared  their  anxieties,  and  I  for  one  can  not  now  remain 
silent  while  they  are  criticixed  for  the  conscientious  exercise  of  that 
judgment  in  applying  the  necessary  measures.  Had  they  failed,  they 
might  have  been  put  to  the  bar  to  account  for  themselves.  But  they 
succeeded,  and  in  a  manner  which  has  commanded  the  admiration  of 
the  world's  veteran  soldiers.  It  is  easy  to  be  wise  after  the  fact. 
But  hi  the  light  of  their  superb  success  let  no  one  now  censoriously 
presume  to  disparage  the  soundness  of  their  judgment  nor  the  wisdom 
of  the  measures  by  which  they  achieved  that  success. 

(c)  I  said  above  that  I  would  conclude  this  part  of  my  comment 
by  mentioning  the  measures  now  practically  under  way  for  mitigating 
and  remitting  the  sentences  of  courts-martial,  in  the  light  of  the 
termination  of  hostilities  and  the  restoration  of  the  national  safety. 

On  the  20th  of  January  you  approved  a  recommendation  of  mine, 
dated  January  IS,  proposing  the  institution  of  a  system  of  review  for 
the  purpose  of  equalizing  punishment  through  recommendations  for 
clemency.  A  board  of  three  officers  was  designated  by  me  in  the 
Office  of  the  Judge  Advocate  General  on  January  28.  This  board  of 
officers,  with  a  large  number  of  assistants,  is  now  examining  the 
record  of  every  sentence  of  courts-martial  under  which  any  soldier  is 
now  confined  in  any  prison  in  the  United  States.  The  recommenda- 
tions of  this  board  will  go  so  far  as  to  remit  the  entire  portion  not 
yet  served  upon  a  sentence  of  confinement  or  to  reduce  it  to  such 
amount  as  seems  suitable  to  the  present  situation  in  view  of  the 
necessities  of  military  discipline.  It  is  expected  that  at  least  100 
cases  a  d:1  v  will  be  passed  upon  by  this  board.  The  completion  of 
the  work  of  this  board,  which  can  not  require  more  than  a  few  months 


MILITARY    .irSTH'K    1>1'KIN'(!    TJIK    WAR.  43 

at  the  most,  will  signalize  a  complete  readjustment  of  all  sentences  in 
a  manner  appropriate  to  the  termination  of  hostilities  and  the  re- 
sumption of  peace-time  requirements  for  military  discipline.  It  is 
certain  that  every  sentence  that  might  now  be  deemed  in  excess  of 
the  necessary  period  will  be  duly  reviewed  and  that  no  soldier  now  in 
confinement  will  serve  any  period  in  excess  of  that  just  amount,  so 
far  as  human  powers  of  judgment  are  equal  to  this  task. 

12.  THAT  THE  SENTENCES  IMPOSED  BY  COURTS-MARTIAL  AI:E 
VARIABLE  FOR  THE  SAME  OFFENSE. 

When  we  come  to  the  question  of  variability  of  sentences,  we  reach 
a  subject  which  has  been  the  fertile  field  for  complaint  and  criticism 
in  civil  courts  for  a  century  past.  It  is  notorious  that  the  independent 
judgment  of  different  courts  and  of  different  juries  seems  to  be  char- 
acterized by  the  most  erratic  and  whimsical  variety.  Such  has  been 
the  constant  burden  of  complaint  in  civil  justice,  and  it  can  hardly 
be  hoped  that  military  justice  could  escape  a  similar  complaint  in 
some  degree.  On  the  other  hand,  it  must  always  be  remembered 
that  here  the  individual  circumstances  vary  so  widely  that  a  varia- 
tion of  sentences  is  perfectly  natural,  and  that  the  mere  variation  of 
figures  in  itself  signifies  very  little  where  the  individual  circumstances 
remain  totally  unknown  to  the  critic.  Nevertheless  a  variability  of 
sentences  for  the  same  offense  is  something  which  naturally  excites 
attention  and  caution;  and  it  should  be  the  object  of  appellate  au- 
thorities to  equalize  the  penalties  for  the  same  offense  where  no 
obvious  reason  for  substantial  difference  is  found.  How  far  the  re- 
visory authority  of  the  Judge  Advocate  General  and  the  clemency 
powers  of  the  Secretary  of  War  have  been  effectual  to  secure  such 
equalization  will  be  noted  later  in  this  letter.  At  the  present  the 
inquiry  of  fact  is  whether  there  has  been  such  variability  and  at 
what  points  it  has  taken  place. 

The  table  above  referred  to,  and  already  handed  to  you,  summarizes 
for  the  nine  principal  military  offenses  the  variance  of  the  sentences, 
first  bymonths  of  the  year  covered,  and  secondly  by  jurisdictional  areas 
from  wliich  the  court-martial  records  come  up  for  revision.  In  sum- 
mary of  these  variances  it  is  here  to  be  noted  that  such  variances 
obviously  exist;  that  these  variances  are  not  in  themselves  any  more 
striking  than  those  that  are  found  in  the  sentences  of  civil  courts,  as 
already  shown  in  the  other  table  submitted  to  you;  that  in  seeking 
the  possible  source  of  these  variances  it  appears  very  strikingly  that 
there  has  been  a  slight  but  appreciable  increase  in  the  number  of 
higher-period  sentences  as  we  come  down  to  the  later  months  of  the 
war;  and  that,  so  far  as  jurisdictional  areas  are  concerned,  there  have 
been  notable  variances  which  seem  in  some  cases  to  localize  the 
higher-period  sentences  for  certain  offenses  in  certain  specific  areas. 

As  illustrating  the  foregoing  inferences  it  will  be  sufficient  here  to 
take  the  single  offense  of  desertion.  Examining  it  by  months  it  will 
be  noticed  that  the  long-term,  sentences  of  10  to  15  years,  and  of  15 


44  MILITARY    .irSTICK    PCKINi;    TMK    WAR. 

to  2."  years  and  over  •„'."•  ye.-ir-  im-iva-ed  -lightly  in  their  ratio  to  tho 
whole  of  the  MMitenrrs  for  the  niontli  as  \ve  a|»|in>a<-h  t  ho  later  mouths 
of  tho  year  under  examination.  For  example,  for  the  months  of  Oc- 
tober, 1917,  to  February,  1918,  there  were  no  sentences  over  25  years, 
although  the  number  of  convictions  increased  from  55  to  196  (tho 
increase,  of  course,  being  duo  to  the  much  greater  ratio  in  the  in- 
n-eitso  of  armed  forces).  But  during  the  months  of  April  to  July, 
\\  ith  approximately  the  same  number  of  convictions,  averaging  225, 
tho  number  of  sentences  for  over  25  years  increased  from  4  to  9,  to  15, 
and  finally  to  33.  Apparently,  therefore,  some  conditions  in  tho 
Army  changed  as  the  months  advanced  so  as  to  induce  this  variance 
in  the  direction  of  higher-period  sentences.  Just  what  those  condi- 
tions were  can  not  even  be  the  subject  of  speculation  without  a  very 
careful  inquiry;  merely  the  fact  is  here  pointed  out. 

Again,  turning  to  the  ']urlsd"ictional  areas,  we  find  that  the  Central  De- 
partment shows  about  9  percent  of  sentences  for  over  10  years,  while 
the  Eastern  Department  shows  only  3  per  cent;  that  the  Twenty- 
eighth  Division,  having  21  convictions,  imposed  no  sentences  in  excess 
of  10  years,  while  the  Eightieth  Division,  with  exactly  the  same  num- 
ber ot  convictions,  imposed  14  sentences  greater  than  10  years. 

As  further  indicating  this  variance  by  jurisdictional  areas,  a  glance 
at  the  same  table  under  tho  offense  of  absence  without  leave,  shows 
that,  in  the  Twenty-eighth  Division,  which  exhibited  the  above 
leniency  for  desertion,  the  offense  of  absence  Without  leave  was 
given  a  sentence  ot  under  2  years  for  127  out  of  140  convictions; 
while  the  Eightieth  Division,  which  had  shown  a  large  majority  of 
long-term  sentences  for  desertion  was,  on  the  other  hand,  lenient 
for  the  offense  of  absence  without  leave,  imposing  16  sentences  of 
under  2  years,  out  of  20  convictions.  Comparing  again  the  Thirty- 
Mxth  and  Thirty-ninth  Divisions,  with  substantially  the  same  num- 
ber of  convictions,  viz,  about  175,  one  finds  that  the  former  imposed 
about  20  sentences  ot  above  10  years,  while  the  other  imposed  101 
sentences  above  10  years.  This  same  Thirty-ninth  Division  had  also 
u-ed  a  majority  of  higher  period  sentences  for  desertion,  whereas 
the  Thirty-sixth  Division  showed  for  desertion  a  record  that  aver- 
aged with  the  other  divisions. 

It  will  be  seen,  therefore,  that  in  many,  if  not  in  most  cases,  the 
extreme  variances  may  be  traced  to  difference  of  practice  in  the 
different  jurisdictional  areas.  Just  what  conditions  existed  which 
would  justify  in  the  individual  cases,  or  in  the  general  trend  of  cases, 
tin's  variance  between  divisions,  can  hardly  be  the  subject  even  of 
hypothesis.  But  it  must  be  obvious  to  any  candid  observer  that 
there  do  exist  wide  differences  of  conditions,  not  only  in  the  racial 
and  educational  make-up  of  the  different  camps,  but  also  in  the 
morale  and  necessities  of  discipline  prevailing  in  different  camps. 
It  is  well  known  that  the  sentences  of  civil  courts  for  civil  offenses 
vary  widely  in  the  different  States.  For  example,  in  1910  (Census 


MILITARY   JUSTICE   DURING   THE   WAR.  45 

Report,  1910,  "Prisoners  and  Juvenile  Delinquents/'  p.  50),  the 
percentage  of  sentences  of  10  years  or  over  was  9.7  in  the  East  South 
Central  States,  but  was  only  0.1  in  the  New  England  States;  in 
Mississippi,  it  was  22.51,  but  in  California  it  was  only  2.3.  This 
illustration  is  mentioned  merely  to  suggest  that  whenever  one  dis- 
covers that  variances  in  sentences  have  a  certain  relation  to  vari- 
ances in  camps  or  divisions,  the  subject  becomes  at  once  too  com- 
plex for  hasty  judgment. 

Apart  from  what  is  now  being  done  in  my  office  by  way  of  the 
equalization  of  sentences  by  commutation  in  the  way  of -clemency, 
I  am  only  concerned  here  to  point  out  the  facts  as  they  are  found  hi 
the  records  relative  to  the  action  of  the  courls-martial  themselves; 
and  to  note  that  such  variances  (apart  from  peculiar  individual  cases) 
as  are  revealed  in  any  noticeable  amount,  seem  to  be  due  most  largely 
to  differences  of  conditions  in  the  different  camps,  divisions,  and  other 
jurisdictional  areas;  and  the  greatest  caution  must  be  exercised  before 
passing  judgment  upon  such  variances  as  inequitable,  without  being 
fully  familiar  with  the  condilions  operating  in  those  places. 

Moreover,  I  must  utter  a  further  caution  against  the  popular  pre- 
sumption that  a  difference  in  sentences  of  different  individuals  for 
the  same  offense  signifies  necessarily  any  inequity.  Tha  individual 
circumstances  differ  so  widely  that  the  injustice  would  consist,  not  in 
the  variability,  but  in  the  rigid  identity  of  the  same  sentence  for  the 
same  offense  in  every  individual  case.  This  very  matter  of  variation 
in  sentences  is  one  of  the  triumphs  of  modern  criminal  law.  One 
hundred  years  ago  virtually  every  criminal  code  of  the  civilized 
world  was  marked  by  a  rigid  fixation  of  penalties  for  each  variety 
of  offense.  It  was  regarded  as  one  of  the  great  objects  cf  criminal 
reform  in  that  era  to  introduce  variability  of  the  sentence  and  adapt 
it  to  the  circumstances  of  the  individual  case.  One  of  the  first 
criminal  codes  to  introduce  this  reform  was  that  of  the  State  of 
Louisiana,  drafted  just  a  century  ago  by  the  great  Edward  Living- 
ston, recognized  as  the  most  eminent  jurist  of  his  day;  this  code  re- 
ceived the  approval  of  the  jurists  of  the  world;  and  one  of  its  most 
remarkable  features  was  its  recognition  of  the  variability  of  sen- 
tences for  varying  individual  circumstances.  Ever  since  that  day 
all  progress  in  criminal  codes  has  included  this  element  in  an  increas- 
ing degree.  The  particular  virtue  claimed  and  proved  for  the  inde- 
terminate sentence,  which  has  now  been  adopted  in  probably  three- 
quarters  of  the  States  cf  our  Union,  is  that  it  gives  full  play  for  the 
adaptation  of  the  sentence  to  the  individual  case.  We  must,  there- 
fore, always  recall  that  the  variability  permitted  by  law  is  in  itself 
a  powerful  feature  tending  to  the  apportionment  of  justice  according 
to  the  circumstances  of  each  case. 

The  one  complementary  element  necessary  in  a  criminal  code  in 
guarding  against  too  great  a  variability  in  the  action  of  different 
courts  is  the  power  of  ultimate  readjustment  by  some  central  tribunal. 


46  MILITARY    JTSTICK    nriUXti    TUK    WAB. 

In  the  language  of  one  of  the  very  Senator-  who  has  cri; ii-i^-.I  v>in<- 
of  these  sentences: 

The  sure  cure  for  it  all  w  to  have  some  sort  of  a  tribunal,  appdlate  or  MJJXT- 
visory,  that  shall  have  the  power  t<»  i»nnuUit<:  rule*  ami  i-'juuli/o  thiwe  unjust 
sentences.  *  *  * 

Precisely  this  power  of  recomp&endation  is  now  r\<-n-i-ed,  and  lon^ 
has  been,  by  the  Judge  Advocate  General's  Office,  in  its  clemmrv 
section.  The  explanation  of  this  nctivitv  brings  me  to  the  next 
point  of  criticism. 

13,  THAT  TII::  Jri><;r.  ADVOCATE  GENERAL'S  OFFICE  EITII.  r: 
PARTAKES  IN  THK  AMU-IDE  OF  SEVERITY  OK  MAKES  NO  ATTEMPT 
TO  CHECK  IT  BY  REVISORY  ACTION. 

The  distinct  implication  running  through  the  critical  remarks  above 
quoted  is  that  there  exists  no  central  authority  that  can  check,  equal- 
ize, or  correct  such  severity  or  variability  as  may  be  found  to  merit 
such  action,  and  that  the  Judge  Advocate  General's  Oilice,  charged 
with  the  duty  of  revising  these  court-martial  records,  either  acquiesces 
in  the  result  of  the  court-martial  sentences  as  approved  by  the  review- 
ing authority  or  makes  no  attempt  to  check  any  excesses  by  revisory 
action. 

It  is,  therefore,  necessary  to  emphasize  that  the  Judge  Advocate 
General's  Office  not  only  scrutinizes  the  court-martial  records  for  the 
purpose  of  discovering  errors  of  law  and  procedure,  but  also,  in  the 
clemency  section  of  the  Military  Justice  Division,  occupies  itself  exclu- 
sively with  the  scrutiny  of  records  for  the  purpose  of  recommending  for 
remission  or  mitigation  those  sentences  which  are  open  to  question  as 
to  severity  or  inequality.  This  power  has  been  exercised  habitually 
ever  since  our  entrance  into  the  war,  as  well  as  before  that  date. 

Inquiring  into  the  results  to  see  what  the  facts  show  the  question 
presents  itself:  To  what  extent  has  the  Judge  Advocate  General's 
Office  called  for  a  reduction  of  sentences  by  a  recommendation  of 
clemency  to  the  Secretary  of  War  ?  And  I  note  in  passing  that  in  no 
instance,  so  far  as  I  am  informed,  has  such  a  recommendation  of 
clemency  failed  to  be  approved  and  given  effect  by  yourself. 

(«)  The  extent  of  such  recommendations  as  to  the  number  of  sen- 
tences is  shown  in  the  following  summary,  covering  the  clemency  recom- 
mendations for  the  year  1918,  as  applied  to  the  sentences  from  October 
1, 1917,  to  September  30,  1918,  for  the  nine  principal  military  offenses: 

Total  number  of  such  sentences  imposed,  7,624;  total  number  of 
such  sentences  selected  by  the  Judge  Advocate  General's  Office  for 
reduction,  947;  percentage  of  selected  sentences  on  all  sentences, 
12.42.  I  see  no  reason  to  doubt  that  this  12£  per  cent  is  ample 
enough  to  cover  all  the  individual  cases  in  which  an  excessive  severity 
would  have  been  apparent  on  the  face  of  the  record. 

The  table  as  placed  in  your  hands  shows  the  reduction  in  its  rela- 
tion to  the  sentences  of  different  lengths.  The  table  shows  that  the 
largest  percentage  of  reduction  occurred  in  the  sentences  of  medium 


MILITARY   JUSTICE   DURING  THE   WAS.  47 

length,  and  that  the  smallest  percentages  of  reduction  occurred  in  the 
sentences  of  shortest  and  of  longest  periods.  This  result  is  perfectly 
natural  and  appropriate.  The  shortest  sentences  are  those  in  which 
there  would  be  the  least  call  for  reduction  by  clemency  on  the  ground 
of  excessive  severity.  The  longest  sentences  are  those  in  which  the 
reduction  on  the  ground  of  excessive  severity  would  presumably  not 
bring  them  to  an  extremely  low  period  and,  therefore,  in  which  the 
time  for  recommending  such  reduction  had  presumably  not  arrived. 

(&)  How  much  reduction  did  this  action  effect  in  the  total  length 
of  all  the  sentences  acted  upon  ?  This  will  afford  some  gauge  of  the 
thoroughness  of  the  action  in  the  nature  of  clemency.  A  table 
already  in  your  hands  shows  the  number  of  sentences  recommended  for 
reduction,  the  total  years  of  the  original  sentences,  the  total  years 
reduced  on  recommendation  of  the  Judge  Advocate  General's  Office, 
and  the  net  years  of  sentence  as  actually  served;  and  the  figures 
are  given  separately  for  the  nine  principal  military  offenses  as  well  as 
for  the  total  of  all  offenses,  October  1,  1917,  to  September  30,  1918. 

Referring  to  the  table  for  details  as  to  the  specific  offenses,  I  will 
point  out  here  merely  that  for  all  offenses,  military  and  civil,  the  total 
reduction  effected  was  a  reduction  of  3,876  years  out  of  an  original 
period  of  4,331  years,  or  a  reduction  of  89§  per  cent.  In  other  words, 
action  of  this  office,  in  effecting  reductions  in  the  1,147  sentences 
selected  on  their  merits  for  reduction,  cut  them  down  to  10.50  per 
cent  of  their  original  amount.  Presenting  the  same  result  in  another 
form,  the  average  original  sentence,  of  these  1,147  sentences,  was  for 
a  period  of  3.78  years  (or  nearly  4  years),  and  the  average  sentence 
served  as  reduced  was  only  0.40  of  one  year,  or  less  than  5  months. 

These  figures  as  to  reduction  effected  in  the  length  of  the  sentences, 
demonstrate  that  the  action  of  this  office  was  a  radical  one,  and  must 
have  served  to  eliminate  any  excessive  severity  in  those  sentences. 
That  the  sentences  selected  for  such  recommendations  of  clemency 
included  all  of  the  sentences  meriting  the  term  "severe,"  neither  I 
nor  anyone  else  would  be  in  a  position  either  to  affirm  or  deny  with- 
out an  examination  of  every  record. 

How  extensive  is  the  scope  of  reduction  now  undertaken  for  all 
sentences,  by  the  special  clemency  board  recently  appointed  at  your 
instance,  has  already  been  told. 

14.  THAT  THE  ACTION  TAKEN  IN  THE  JUDGE  ADVOCATE  GEN- 
ERAL'S OFFICE  is  INEFFECTUAL  TO  ENFORCE  MILITARY  LAW  AND 
PROCEDURE,  BECAUSE  ITS  RULINGS  Do  NOT  HAVE  THE  FORCE 
OF  A  SUPREME  COURT  MANDATE,  BUT  ARE  ONLY  RECOMMENDA- 
TORY, AND  ARE  EITHER  IGNORED  BY  THE  DIVISION  COMMANDERS 
OR  VETOED  BY  THE  CHIEF  OF  STAFF. 

This  brings  me  to  the  question  which  has  formed  the  principal 
theme  of  recent  discussion  in  Congress ;  and  I  must  divide  my  com- 
ments under  three  heads,  covering  each  one  as  concisely  as  accuracy 
will  permit:  (a)  the  question  of  simple  fact,  i.  e.,  what  actually  is  the 


48  MILITARY    .IT-TICK    IU'RIN't;    TITK    WAR. 

effect  of  the  Judge  Advocate  General's  notion;  (I)  the  question  of 
legal  theory,  i.  e.,  what  is  the  extent  of  his  legal  powers  under  existing 
law;  mid  (r)  what  use  has  recently  been  made  of  this  question  of  legal 
theory  by  certain  parties  in  disparaging  the  administration  of  military 
justice  by  the  War  Department. 

(«)  The  simple  //>/«. s7'«//»  <-f  fact. — The  foregoing  exposition  of  the 
principles  of  military  law  and  procedure,  as  enforced  through  the 
appellate  system  culminating  in  the  advisory  action  of  the  Judge 
Advocate  General's  Office,  is  vain  and  meaninglc-s  to  some  of  the 
critics  of  our  military  >\-tein.  I  find  it  repeatedly  asserted  and  im- 
plied that  the  commanding  officer  of  the  division  or  department — in 
technical  language  the  reviewing  authority — is  not  obliged  to  follow 
and  does  not,  in  fact,  follow  these  recommendations.  ''Court-martial 
sentences  found,  ]>y  the  reviewing  authorities,  to  be  null  and  void  for 
want  of  jurisdiction,"  it  is  stated,  ''have  been  allowed  to  stand." 
''The  military  commander  is  not  obliged  either  to  ask  for  legal  advice 
or  to  follow  it  when  he  has  asked  for  it,  and  it  has  been  given  to  him 
by  the  responsible  law  officers  of  the  Army."  "Courts-martial 
should  be  required  to  accept  the  interpretation  of  the  law  by  a  respon- 
sible law  officer. " 

The  records  of  courts-martial  come  to  the  Judge  Advocate  General 
to  "revise,"  and  what  legal  effect  this  "revision"  ought  to  ha"ve  in 
theory  is  a  mooted  question  of  law  and  policy  on  which  I  shall  later 
comment;  suffice  it  here  to  say  that  a  difference  of  view  exists,  and 
that  the  judgment  expressed  by  the  Judge  Advocate  General  in  his 
appellate  capacity  is  customarily  phrased  in  terms  of  a  recommenda- 
tion to  the  commander  in  the  field.  But  this  question,  after  all,  like 
many  questions  of  fundamental  principles,  may  become  practically 
irrelevant  in  the  light  of  the  facts.  The  assertion  made  in  the 
remarks  above  quoted  is  an  assertion  of  fa< -t ,  vi/,  that  the  command- 
ing officer  does  not  follow  the  legal  advice  which  is  given  him  and 
does  not  accept  the  rulings  of  the  responsible  law  officer. 

On  the  question  of  fact  let  the  facts  themselves  answer. 

The  cases  fall  necessarily  into  two  groups.  One  class  of  cases, 
coming  to  the  Judge  Advocate  General  for  revision  under  United 
States  Revised  Statutes,  section  1199,  the  thirty-eighth  Article  of 
War,  and  General  Order  No.  7,  January,  1918,  require  and  receive 
no  other  revision  or  approval  than  that  given  by  the  Judge  Advocate 
General.  The  other  class  of  cases  includes  sentences  of  death  and 
of  dismissal  of  officers,  which,  under  the  forty-eighth  article  of  war, 
require  confirmation  by  the  President,  as  well  as  certain  other  cases 
in  wliich  error  of  law  has  been  found  but  the  execution  of  the  sentence 
has  not  been  suspended  by  the  reviewing  authority.  The  former 
class  of  records  go  directly  back  from  the  Judge  Advocate  General  to 
the  reviewing  authority  in  the  field;  the  latter  class  of  cases  go  from 
the  Judge  Advocate  General  through  The  Adjutant  General  and  the 
Chief  of  Staff  to  the  Secretary  of  War,  and  sometimes  to  the  Presi- 


MILITARY   JUSTICE   DURING   THE   WAR. 


49 


dent.  The  question  of  fact  is,  therefore,  in  what  proportion  of  cases 
does  purely  military  authority  fail  to  give  effect  to  those  revisory 
rulings  of  the  Judge  Advocate  General  ? 

The  results  in  both  classes  of  cases  are  shown  in  the  following  table: 

Effect  of  action  of  Judge  Advocate  GcneraVs  Office  Apr.  6,  1917- Jan.  1,  1919. 


Cases  recommended  for  modification  or 
disapproval  on  legal  grounds.1 

Number  of 
cases. 

Recommendations 
given  effect. 

Recommendations  not 
given  effect. 

Number. 

Per  cent. 

Number. 

Per  cent. 

To  reviewing  authority  

212 
279 

205 
273 

96.7 
97.8 

7 
6 

3.3 
2.2 

To  Secretary  of  War  

Total  

491 

478 

97.4 

13 

2.6 

i  Does  not  include  a  few  cases  in  which  the  Judge  Advocate  General's  Office  recommended  changes  in 
the  place  of  confinement. 

It  thus  appears  that  out  of  a  total  for  the  period  covered  of  491 
cases  recommended  by  the  Judge  Advocate  General  for  disapproval 
on  legal  grounds,  there  were  only  13  cases  in  which  the  Judge  Advo- 
cate General's  ruling  was  not  followed;  of  these  cases,  7  were  not 
followed  by  the  reviewing  authority  in  the  field,  and  6  were  not 
followed  in  the  Secretary  of  War's  office. 

In  the  light  of  these  facts,  I  think  I  am  justified  in  asserting  that 
the  records  disclose  no  foundation  for  the  assertion  contained  in  the 
above-quoted  remarks.  It  is  not  a  fact  that  the  military  commander 
or  that  any  military  authority  proceeds  to  follow  out  the  dictates 
of  his  own  discretion  regardless  "of  the  interpretation  of  the  law  by 
a  responsible  law  officer,"  nor  that  he  fails  to  follow  the  legal  advice 
"When  he  has  asked  for  it  and  it  has  been  given  to  him  by  the 
responsible  law  officers  of  the  Army."  Whatever  may  be  the  legal 
theory  of  the  function  now  placed  by  statute  in  the  Judge  Advocate 
General  as  the  law  officer  or  appellate  tribunal  for  military  justice 
in  the  Army,  that  theory  becomes  virtually  immaterial  in  the  light 
of  the  facts  during  the  period  of  the  war.  The  state  of  things  sup- 
posed by  critics  to  exist,  simply  does  not  exist.  Virtually  the  recom- 
mendations of  the  Judge  Advocate  General  are  given  practical 
effect  in  the  same  manner  as  the  trial  courts  in  civil  justice  give 
effect  to  the  mandate  of  the  supreme  court  of  the  State. 

(fc)  The  question  of  legal  theory. — The  question  of  legal  theory, 
stated  concisely,  is  this:  Is  the  Judge  Advocate  General's  ruling 
mandatory,  like  that  of  a  supreme  appellate  court,  with  the  effect  of 
compelling  the  reversal  or  correction  of  a  court-martial  judgment 
founded  upon  legal  error  ? '  Or  is  it  only  recommendatory,  in  that 
the  commanding  general  or  the  President,  as  the  case  may  be,  is  not 
bound  implicitly  to  follow  and  give  effect  to  the  ruling  ? 

The  question  was  first  presented  to  this  office,  during  the  present 
war,  in  October,  1917,  in  the  now  celebrated  case  of  the  "Texas 
mutineers"  (C.  M.  No.  106,663,  tried  at  Fort  Bliss,  Tex.,  in  September, 
1917).  In  this  case  certain  sergeants,  having  been  ordered  under 


50  MII.ITAKY  .ir>;  .  WAR. 

arrest  by  a  young  officer,  for  a  very  minor  ofFei  axis, 

while  still  under  arrest,  directed  to  drill;  hul,  as  the  Army  Regula- 
tions, properly  construed,  do  not  authorize  noncommissioned  of': 
to  be  required  to  attend  drill  formations  while  under  arrest,  the 
sergeants  dedmcd  to  drill  as  ordered;  for  this  disobedience  they  \. 
found  guilty  of  mutiny,  :;nd  sentenced  to  dishonorable  di>charge  and 
imprisonment  for  terms  of  between  10  and  !'.">  y. 

Now  it  may  be  at  once  and  unreservedly  admitted  that  this  was  a 
genuine  case  of  injustice,  and  that  the  injustice  was  due  to  an  over- 
strict  attitude  of  military  officers  toward  discipline;  for  it  is  conceded 
by  all  that  the  young  officer  who  gave  the  order  to  drill  was  both 
tactless  and  unjustified  in  his  conduct,  and  it  is  conceded  that  the 
commanding  officer  who  reviewed  and  approved  the  sentence  wa^  a 
Regular  Army  officer  of  long  experience,  who  failed  to  appreciate  the 
justice  of  the  situation.  That  this  case  illustrates  the  occasional 

-ibility  of  the  military  spirit  of  discipline  overshadowing  the  s 
of  law  and  justice  is  plain  enough.  But  that  it  indicates  any  general 
condition  can  not  for  a  moment  be  asserted.  Moreover,  this  very 
ca-e  serves  also  to  illustrate  the  essentially  law-enforcing  spirit  which 
dominates  in  the  office  of  the  Judge  Advocate  General.  The  impro- 
priety and  illegality  of  the  sentence  in  this  case  was  immediately 
recognized  when  the  record  arrived  in  the  office  for  review.  An 
opinion  was  prepared  pointing  out  the  irregularity  and  injustice, 
and  directing  that  the  foldings  be  set  aside.  But  the  legality  of  such 
a  direction  was  questioned  in  the  face  of  a  ruling  by  the  Attorney 
General  of  the  United  States,  many  years  ago,  that  u  sentence  of 
court-martial,  once  executed,  can  not  be  set  -n  by  the  Presi- 

dent himself.  This  raised  the  general  question  of  the  authority  of  the 
Judge  Advocate  General  not  merely  to  recommend  for  clemency  (which 
would  not  have  been  an  adequate  redress  for  the  convicted  men  in  this 
case),  but  to  direct  the  setting  aside  of  the  findings,  in  a  judgment  of  a 
court-martial,  for  legal  error,  where  the  sentence  had  been  already  ex- 
ecuted (namely,  in  this  case,  the  sentence  of  dishonorable  discharge). 

The  Secretary  of  War  having  sustained  the  doubt  as  to  the  author- 
ity of  the  Judge  Advocate  General  to  take  such  radical  action,  clem- 
ency was  extended  by  the  President,  releasing  the  men  from  confine- 
ment and  restoring  them  to  duty,  within  about,  three  months  from 
the  date  of  their  conviction.  At  the  same  time  a  new  measure 
adopted  by  the  Secretary  of  War,  in  the  shape  of  General  Order 
No.  7,  W.  D.,  1918,  taking  effect  February  1,  ItHs,  which  prevented 
the  recurrence  of  such  instances,  by  directing  that  the  commanding 
general,  upon  confirming  a  sentence  of  death  or  officer's  dismiss  1 
or  dishonorable  discharge,  should  suspend  the  execution  of  the 
sentence,  pending  a  review  of  the  case  in  the  office  of  the  Judge  Advo- 
cate General.  Thus  immediate  measures  were  taken,  to  go  as  far 
as  could  be  gone  under  the  law  as  conceded  on  all  hands,  to  prevent 
the  recurrence  of  the  situation  presented  in  the  Texas  mutiny  case. 


MILITARY   JUSTICE   DURING  THE  WAR.  51 

It  would  be  out  of  place  here  to  set  forth  at  length  the  arguments 
pro  and  eon  upon  this  question  of  legal  theory.  The  basic  statute 
defining  the  powers  of  the  Judge  Advocate  General  in  respect  to 
courts-martial  judgments  dates  from  1862,  and  provides  (U.  S. 
Revised  Statutes,  section  1199)  that  "the  Judge  Advocate  General 
shall  receive,  revise,  and  cause  to  be  recorded  the  proceedings  of  all 
courts-martial,"  etc.  This  word  "revise"  was  construed  by  the 
senior  officer  on  duty  under  me,  when  dealing  with  the  Texas  muti- 
neers' case  (above  cited),  to  signify  a  complete  appellate  authority 
empowering  the  Judge  Advocate  General  to  correct  and  if  appropriate 
to  sot  aside,  reverse,  and  annul  a  court-martial  judgment  which 
involved  some  legal  error.  But  this  construction  of  the  statute  could 
not  be  accepted  by  me.  One  reason  was  that  for  55  years  my  prede- 
cessors in  office,  beginning  with  Judge  Holt,  in  Lincoln's  administra- 
tion, had  failed  to  advance  any  such  construction  enlarging  their 
powei-s,  and  that  a  decision  of  a  Federal  court  in  1882  had  expressly 
repudiated  the  propriety  of  such  construction.  A  second  reason  was 
that  the  assumption  of  such  a  power  by  this  office  under  that  statute 
would  equally  operate  to  control  not  only  commanding  generals  of 
a  division  or  department  but  also  the  President,  as  Commander  in 
Chief,  in  those  cases  where  he  has  the  reviewing  authority  under 
the  48th  article  of  war,  and  thus  would  render  the  Judge  Advocate 
General  virtually  a  supreme  military  tribunal  independent  of  the 
President  himself;  the  ultimate  control  of  the  discipline  of  the  Army 
would  become  vested  in  the  Judge  Advocate  General.  A  third 
reason  was  that  even  the  President  himself  does  not  under  the 
existing  law  possess  such  a  power  to  set  aside  and  annul  a  sentence 
of  a  court-martial,  when  once  it  has  been  executed;  the  absence  of 
such  a  power  in  the  President  having  been  constantly  maintained  in 
a  long  series  of  opinions  by  the  Attorneys  General  of  the  United 
States,  beginning  with  Caleb  Cashing  in  1854.  (6  Op.  A.  G.  514; 
10  Op.  A.  G.  66;  15  Op.  A.  G.  290;  17  Op.  A.  G.  303.)  It  would 
thus  be  anomalous  and  extraordinary  to  suppose  that  the  Congress 
had  intended  to  vest  the  Judge  Advocate  General  with  a  supreme 
authority  which  they  had  not  seen  fit  to  grant  to  the  President 
himsolf;  the  President  being  the  ''natural  and  proper  depository  of 
appellate  judicial  power"  for  the  Army,  as  pointed  out  by  William 
Wirt,  when  Attorney  General  in  1818.  Such  was  the  issue  of  legal 
theory,  and  such  were  the  controlling  reasons  forcing  me  to  refuse 
to  accept  the  construction  of  Revised  Statutes,  section  1199,  which 
would  vest  that  extraordinary  power  in  my  office. 

But  the  lack  of  that  power,  lodged  somewhere,  and  most  preferably 
in  the  President  himself,  was  certainly  to  be  regretted.  The  General 
Order  No.  7,  effective  February  1,  1918,  and  drafted  at  my  instance 
and  in  my  office  in  December,  1917,  virtually  prevented  the  re- 
currence of  injustice  in  most  cases  by  requiring  the  reviewing  au- 
thority to  suspend  execution  of  the  sentence  pending  the  review  in 


52  MILITARY    .TUSTK  I  TIM'.    WAR. 

my  office.  But  for  rases  that  had  occurred  prior  to  that  date,  and 
possibly  for  other  oo-a-ional  rases,  a  more  radical  remedy  was 
needed,  for  example,  in  the  above-cited  ease  of  tho  Texas  mutineers, 
for  whom  the  r< cord  of  dishonorable  discharge  remained  perforce 
unrevoked,  although  they  had  been  already  released  from  confine- 
ment and  restored  to  duty. 

I  was  ready  and  anxious  to  see  the  existing  law  so  amended  as  to 
remedy  this  defect,  by  a  grant  of  power  from  Congress  to  the  Presi- 
dent. Far  from  opposing  sueh  remedy,  I  took  prompt  measures  to 
secure  it.  My  only  negative  attitude  was  to  oppose  the  assumption  of 
that  power  by  myself,  through  mere  construction,  sudden  and  revolu- 
tionary, of  a  statute  never  before  deemed  to  bear  such  interpretation. 

This  attitude  on  my  part  has  been  subjected  to  the  most  unwarrant- 
able distortion  in  recent  discussion,  and  I  am  therefore  obliged  now  to 
place  before  you  the  facts  that  (as  I  hope)  furnish  my  vindication. 

(c)  The  'use  made  of  the  foregoing  c<>ntrnr,  i-sij. — It  has  been  pub- 
licly alleged,  first,  that  I  was  opposed  to  the  correction  of  this  ad- 
mitted defect  in  existing  law;  and,  secondly,  that  I  carried  my 
opposition  so  far  as  to  secure  the  revocation  of  the  appointment  of 
my  senior  officer  as  acting  Judge  Advocate  General,  because  of  his 
championship  of  the  view  which  I  opposed. 

On  the  first  point,  a  brief  reference  to  documents  long  in  print  will 
supply  the  instant  refutation.  In  January,  1918,  you  yourself,  hav- 
ing agreed  with  my  construction  of  the  statute,  and  having  con- 
curred in  the  view  that  the  situation  required  remedy,  sent  a  letter 
dated  January  19  to  the  chairmen  of  both  the  Senate  and  House 
Military  Affairs  Committees,  transmitting  a  bill,  S.  3692,  H.  R. 
9164  (drafted  in  my  office),  amending  the  section  of  the  Revised 
Statutes  in  question  so  as  to  enable  the  President,  advised  by  the 
Judge  Advocate  General,  to  reverse  or  modify  findings  and  sentences 
of  courts-martial;  and  in  general  to  cure  the  existing  defect  of  power. 
On  February  5,  1918, 1  testified  fully  in  support  of  the  bill,  at  a  hear- 
ing before  the  House  Committee  on  Military  Affaii-s  (printed  as 
"Hearings  before  the  Committee  on  Military  Affairs  on  H.  R.  9164," 
February  4,  5,  22,  1918).  During  the  year  that  has  elapsed  since 
the  presentation  of  that  bill,  neither  the  Senate  nor  the  House  has 
seen  fit  to  take  action  upon  it.  So  far  as  I  am  informed,  it  was 
never  even  reported  out  by  either  committee.  I  think,  therefore, 
that  in  mere  justice  to  myself,  I  am  entitled  to  point  out  that  the 
responsibility  for  any  injustices  that  may  have  occurred  in  the  ad- 
ministration of  military  justice  since  February,  1918,  and  the  in- 
ability to  correct  injustices  prior  to  that  date,  due  to  the  defect  of 
appellate  powers  here  in  question,  can  not  be  laid  at  the  door  of  the 
Judge  Advocate  General. 

In  January  of  the  present  year,  however,  was  introduced  a  new 
bill,  both  in  Senate  and  House,  S.  5320  and  H.  R.  14883  (Cong.  Rec., 


MILITARY   JUSTICE   DURIXG   THE   WAR.  53 

p.  1988,  Jan.  23),  which  again  proposed  to  correct  the  defect  already 
described,  but  this  time  by  resting  in  the  Judge  Advocate  General 
(sec.  8)  this  power  to  disapprove  the  whole  or  any  part  of  a  finding 
or  sentence  of  a  court-martial.  The  expedient  proposed  in  this  meas- 
ure, viz,  the  grant  of  power  to  the  Judge  Advocate  General  (not  the 
President),  is  identical  with  the  construction  of  Revised  Statutes, 
section  1199,  urged  by  the  senior  officer  on  duty  in  my  office  in  No- 
vember, 1917,  more  than  a  year  before.  And  speeches  were  now 
heard  on  the  floor  of  Congress  lamenting  the  errors  due  to  the  de- 
fective military  law,  urging  the  passage  of  this  bill,  and  reflecting  on 
the  negligence  of  the  War  Department  in  failing  to  administer  com- 
plete military  justice.  I  am  here  concerned  only  with  pointing  out, 
in  respect  to  this  particular  and  conceded  defect,  that  the  responsi- 
bility surely  does  not  lie  with  either  yourself  or  myself;  for  the  pas- 
sage of  the  earlier  bill,  S.  3692  and  H.  R.  9164,  introduced  just  one 
year  before,  in  January,  1918,  would  have  rendered  needless  either 
the  bill  or  the  discussion  of  January,  1919. 

As  to  the  second  point:  I  said  above  that  the  bill  of  January,  1919, 
proposed  to  lodge  this  appellate  power  not  in  the  President  out  in 
the  Judge  Advocate  General,  exactly  as  maintained  by  the  senior 
officer  above  referred  to,  in  November,  1917,  and  as  repudiated  by  me 
at  that  time.  This  officer  in  a  letter  dated  February  17,  1919  (Cong. 
Rec.,  p.  3982,  Feb.  19),  has  now  attempted  to  place  both  you  and  me 
in  the  position  hot  only  of  having  opposed  his  efforts  to  correct  the 
defect  of  the  law  but  even  of  concurring  to  cause  him  to  be  "  relieved 
of  any  duties  in  connection  with  the  administration  of  military 
justice,"  because  of  his  efforts  to  reform  the  law. 

It  is  unpleasant  to  have  to  defend  oneself  against  such  a  charge, 
because  to  set  forth  the  facts  as  they  were  must  involve  the  revelation 
of  a  discreditable  course  of  conduct  in  an  officer  whose  abilities  had 
heretofore  possessed  my  entire  admiration  and  personal  confidence. 
Summarizing  the  facts  as  they  appear  of  record,  they  are  these:  In 
October,  1917,  I  was  dividing  my  time  between  the  duties  of  Judge 
Advocate  General  and  Provost  Marshal  General,  usually  spending  the 
evenings  and  often  other  parts  of  the  day  at  the  former  office.  On 
November  3,  1917,  the  officer  in  question  forwarded  to  me  a  memo- 
randum formally  superscribed:  "Memorandum  for  Gen.  Crowder," 
and  containing  the  following  passage. 

I  am  at  times  considerably  embarrassed,  and  besides  the  transaction  of  public 
business  is  I  think  somewhat  impeded  and  confused,  by  the  fact  that  it  is  not  known 
to  the  service  at  large  that  you  are  not  conducting  the  affairs  of  this  office  as  well  as 
those  of  the  Provost  Marshal  General ;  the  public  conception  being  that  you  are,  as 
you  legally  are,  the  head  of  both  offices,  as  in  fact  you  are  not.  *  *  *  I  ought  to 
be  designated  in  orders  by  the  Secretary  of  War  as  Acting  Judge  Advocate  General 
during  your  practical  detachment  from  the  office. 

Tho  reference  here  was  to  Revised  Statutes,  section  1132,  which 
authorizes  the  President  "during  the  absence  of  the  chief  of  any 


54  MILITARY    .ll'STK'K    M/IMNi;    T!  I  K    U'AB. 

military  bureau,"  to  empower  some  officer  of  the  department  or  corps 
\\hose  chief  is  absent  to  take  charge  thereof."  The  letter  continued: 
I  U'Ueve  ihat  the  com •»ii>li(.n  which  tin-  service  has  of  your  relation  to  both  offices 
has  succeeded  in  minimizing  the  importance  of  earh  otlii •<•.  and  (hat  this  has  resulted 
already  in  considerable  disadvantage  to  yourself,  and  has  resulted  in  no  advantage  to 
me.  I  submit  this  matter  to  you  wholly  di.-iii!«-n'stcdly  jMTnonally  but  with  the 
absolute  cunvii  lion  that  the  order  ought  to  issue.  If  the  suggestion  should  l»e  agree- 
able  to  you,  I  should  ask  you  to  join  in  tli<-  MBOXmtdtm  to  ti  ,-v  of  War 

asking  its  accomplishment. 

I  am  expressing  it  mildly  when  L  say  that  the  conviction  thus  com- 
municated was  a  total  surprise  to  mj'self.  Its  formal  manner  of 
transmission,  when  a  personal  visit  from  an  adjacent,  room  would  have 
sufficed  to  open  the  matter  frankly  and  naturally,  gave  me  the  im- 
pression of  being  virtually  charged  with  a  neglect  of  duty  which  others 
had  observed  but  of  which  I  was  myself  totally  unaware,  and  showed 
me  that  1  was  hardly  in  a  position  to  pass  an  unbiased  judgment  upon 
the  propriety  of  my  being  relieved  from  titular  charge  of  the  Office  of 
the  Judge  Advocate  General  pursuant  to  the  statute.  I  therefore 
resolved,  without  personal  protest  or  even  argument,  to  leave  the 
matter  entirely  in  the  hands  of  yourself,  the  natural  judge  of  the 
proprieties.  My  reply  of  November  4,  read: 

MY  DEAR  GEN.  ANSELL:  It  will  be  entirely  agreeable  to  me  to  have  you  tak«-  up, 
directly,  and  in  your  own  way,  with  the  Secretary  of  War,  the  subject  matter  of  your 
letter  of  yesterday — 

and  closed  with  a  simple  sentence  disclaiming  knowledge  of  any  sup- 
posed embarrassment  to  public  business  as  alluded  to.  No  further 
communication  passed  between  us  nor  between  the  officer  in  question 
and  the  Secretary  of  War;  for  it  will  be  noted  that  both  his  original 
proposal  and  my  reply  were  expressly  directed  to  his  taking  up  the 
matter  "directly  with  the  Secretary  of  War."  But  on  November  6, 
two  days  later,  the  officer  presented  in  person  to  the  Acting  Chief  of 
Staff  a  memorandum  containing  a  draft  order  for  his  own  designation, 
under  Revised  Statutes,  section  1132,  as  Acting  Judge  Advocate 
General,  and  asking  that  the  order  "be  published  immediately." 
This  memorandum  began:  " Doubtless  the  Judge  Advocate  General 
of  the  Army  is  'absent'  from  this  office  in  the  sen-e  of  1132  Revised 
Statutes  and  has  been  so  absent  since  I  have  been  here  in  charge," 
and  it  ended  thus:  ''I  am  authorized  to  say  that  Gen.  Crowder  him- 
self is  entirely  agreeable  to  my  calling  this  matter  to  your  attention." 
The  Acting  Chief  of  Staff,  taking  this  memorandum  at  its  face  value, 
corroborated  as  it  was  by  certain  representations  from  the  officer, 
which  raise  a  further  question  of  veracity,  on  the  same  day  made  an 
order  designating  the  officer  as  Acting  Judge  Advocate  General;  but 
this  order  was  marked  for  suspended  publication  until  December  9. 
Meanwhile,  neither  the  order  itself,  nor  any  information  about  it 
from  the  officer  himself  or  from  any  other  officer,  was  brought  to  the 
notice  of  yourself.  On  November  17,  of  your  own  motion,  you 
addressed  to  me  a  personal  letter,  expressing  your  disinclination 


MILITARY   JUSTICE   DURING   THE   WAR.  55 

that  I  should  permit  iny  duties  as  Provost  Marshal  General  to  en- 
croach increasingly  on  my  time,  and  asking  whether  it  would  he 
possible  for  rue  to  allot  my  time  more  liberally  to  the  office  of  the 
Judge  Advocate  General.  On  November  18,  I  replied,  pointing  out 
that  the  revision  of  the  Selective  Service  ^Regulations,  pending  during 
October  and  November,  was  now  completed  and  that  thereafter  I 
should  expect  to  divide  my  time  in  even  shares  between  the  two 
offices.  On  the  same  day,  November  18,  your  attention  was  first 
called  to  the  unpublished  order  of  November  6,  above  mentioned, 
the  occasion  being  the  presentation  to  you  by  that  officer  of  a  list  of 
proposed  appointees  as  judge  advocates.  Your  inquiry  of  him, 
whether  I  had  been  consulted  upon  those  names,  evoked  from  him 
the  revelation  of  the  existence  of  that  order,  which  had  been  obtained 
by  him  under  the  circumstances  above  mentioned.  Neither  you  nor 
myself  had  up  to  that  time  been  made  aware  of  its  existence.  Con- 
trary as  it  was  to  your  own  expressed  desire  in  your  letter  of  Novem- 
ber 17  to  myself,  you  promptly  directed  The  Adjutant  General  to 
revoke  it;  and  that  revocation  appears  of  record  in  the  file  of  The 
Adjutant  General,  dated  November  19,  the  next  day. 

This  chronology,  taken  from  each  day's  records,  makes  it  plain  that 
the  revocation  of  the  order  was  due  solely  to  the  fact  that  the  order 
was  obtained  surreptitiously  without  your  knowledge  and  was  con- 
trary to  your  express  and  recorded  intention;  that  you  revoked  it 
the  moment  you  became  a\vare  of  its  existence;  and  that  I  myself 
was  not  aware  of  its  existence  until  you  informed  me. 

Meanwhile,  however,  the  memorandum  of  the  officer  in  question, 
arising  out  of  the  Texas  Mutineers'  case,  and  claiming  extraordinary 
powers  for  the  Judge  Advocate  General,  had  been  prepared  by  him 
in  this  office,  but  without  bringing  it  to  my  knowledge.  It  bears 
date  of  November  10,  but  in  the  officer's  own  handwriting;  and  there 
is  nothing  to  show  when  it  was  transmitted  to  your  office;  for  it 
never  passed  through  my  hands,  nor  did  it  ever  come  to  my  knowl- 
edge, in  any  form,  nor  was  the  existence  of  such  a  memorandum  even 
suspected  by  me,  until  after  the  completion  of  the  entire  chronology 
above  set  forth.  It  was  on  the  evening  of  Friday,  November  23, 
four  days  after  the  above  order  had  been  revoked  by  you,  that  I  first 
received  from  your  hands  the  memorandum  in  question,  with  the 
request  to  consider  its  legal  argument  for  the  power  therein  claimed . 
During  the  days  of  November  24,  25,  and  26  I  proceeded  with  a  study 
of  the  precedents,  calling  two  skilled  judge  advocates  to  my  assist- 
ance, and  on  Tuesday,  November  27,  a  brief,  so  dated,  was  filed  with 
you  by  me.  This  brief  exposed  the  legal  fallacies  of  the  above  officer's 
memorandum,  pointed  out  its  suppression  of  material  and  conclusive 
authorities  to  the  contrary,  and  expressed  the  view  to  which  I  have 
ever  since  adhered,  viz.,  that  the  power  did  not  exist  under  present 
law,  and  that  the  only  source  of  remedy  would  be  a  grant  of  power 
from  Congress.  On  the  same  day,  November  27  you  expressed 


56  MILITARY    JTSTK'K    WHINf,    THK    WAR. 

assent  to  the  \ie-\\s  set  forth  in  my  brief;  and   \<>ur  memorandum 
rone -hide-:  "\  frank  appeal  to  the  legislature  for  added  power  is 
p."     This  concurrence,  of  view*  between  A  our-elf  and  myself  was 
reached,  I  note,  on  November  27,  and  not  before  then. 

It  is  a  peculiar  roineidenee  that  the  abovo  officer's  surreptitious 
art  of  securing  the  order  designating  him  as  Acting  Judge  Advocate 
General  took  place  on  November  6;  that  his  brief  churning  extraor- 
dinary judicial  powers  for  the  Judge  Advocate  General  (which  had 
been  preparing,  as  his  letter  states,  since  October  is)  was  withheld 
until  at  least  a  week  later  than  the  signing  of  the  order  which  placed 
him  in  the  position,  as  he  supposed,  to  exercise  that  extraordinary 
power:  and  that  although  the  order  itself  which  placed  him  in  office 
was  so  managed  as  to  be  kept  from  your  knowledge,  yet  the  memo- 
randum which  would  have  added  that  power  to  his  office  was  handed 
directly  to  you  (not  to  me),  and  at  a  time  when  yon  still  supposed 
that  I  was  the  incumbent,  and  not  he.  The  coincidence  is  so  remark- 
able that  an  inference  of  deliberate  and  ambitious  planning  for  per- 
sonal power,  and  only  for  personal  power,  is  unavoidable. 

At  the  risk  of  being  tedious,  I  have  thus  set  forth  from  the  records 
the  chronology  of  this  episode;  for  thus  alone  could  these  recent 
public  insinuations — reflecting  both  on  your  supposed  conduct  and 
on  mine — bo  conclusively  dispelled.  It  must  now  be  clear  to  all 
that  the  actual  reason  for  your  revocation  of  the  order  designating 
that  officer  as  Acting  Judge  Advocate  General  was  that  it  had  been 
surreptitiously  obtained  and  was  contrary  to  your  initial  and  constant 
intention;  that  the  memorandum  claiming  for  the  Judge  Advocate 
General  an  unauthori/ed  power  to  correct  court-martial  errors 
not  brought  to  my  notice  until  four  days  after  the  abovo  order  had 
been  revoked;  that  your  consensus  with  me  as  to  the  unsoundness  of 
that  claim  was  not  reached  until  a  week  subsequent  to  that  revoca- 
tion; that  therefore  the  revocation  of  that  order  could  not  possibly 
have  been  motivated,  either  in  your  mind  or  in  mine,  by  our  failure 
to  accept  his  views  on  the  subject  of  the  legal  powers  of  the  Judge 
Advocate  General;  and,  in  conclusion,  that  the  assertion  or  insinua- 
tion that  his  appointment  was  revoked  because  of  your  and  my 
opposition  to  his  views  as  to  the  proper  method  of  improving  the  law, 
is  baseless  and  unjust  to  us  both. 

I  must,  however,  continue  for  a  moment  on  this  subject,  because 
the  same  officer,  in  his  letter  of  February  17,  1919  (Cong.  Record, 
p.  3983,  Feb.  19),  makes  a  second  charge  of  a  similar  sort,  which 
is  not  only  equally  baseless  but  reveals  on  his  part  the  same  singular 
methods  of  manipulation.  In  that  letter,  setting  forth  his  continued 
efforts  ''to  break  up  such  a  static  and  intolerable  legal  situation," 
he  continues: 

In  Soptoml>er  (1918),  upon  my  insistent  recommendation,  power  was  established 
in  the  Acting  Judge  Advocate  General  in  France  to  make  rulings  ujxm  matters  of  the 
ad  ministration  of  military  justice,  in  our  own  forces  in  France,  which  would  control 
all  commanding  generals  until  overruled  by  the  Secretary  of  War.  This  is  now  being 


MILITARY   JUSTICE   DURING   THE   WAR.  57 

opposed  by  the  commanding  general  American  Expeditionary  Forces,  and  my  own 
action  and  propriety  in  procuring  the  issue  of  this  order  is  being  subjected  to  question. 

The  reference  is  to  General  Order  No.  84,  dated  September  11, 
1918,  amending  Section  II  of  General  Order  No.  7,  dated  January  17, 
1918,  the  latter  being  the  general  order,  above  referred  to,  which 
aimed  to  avoid  the  recurrence  of  such  dilemmas  as  that  of  the  Texas 
mutineers'  case,  so  far  as  the  Judge  Advocate  General's  powers  per- 
mitted. The  facts  are  in  the  first  place,  that  this  amending  General 
Order  No.  84  was  also  obtained  surreptitiously  by  the  above  officre; 
but  in  the  second  place,  that  it  has  not  been  opposed  by  Gen.  Pershing. 
A  brief  statement  will  suffice  to  show  this.  The  original  General 
Order  No.  7,  in  its  Section  II,  applying  to  the  branch  Judge  Advocate 
General's  Office  in  France,  directed  that  office  to  "report"  to  the 
reviewing  authority  any  legal  errors,  "to  the  end  that  any  such 
sentence  or  any  part  thereof  so  found  to  be  invalid  or  void  shall  not 
be  carried  into  effect."  The  amending  General  Order  No.  84  sub- 
stituted for  the  above  clause  this  sentence:  "Any  sentence  or  any 
part  thereof,  so  found  to  be  illegal,  defective,  or  Void,  in  whole  or  in 
part,  shall  be  disapproved,  modified,  or  set  aside,  in  accordance  with 
the  recommendation  of  the  Acting  Judge  Advocate  General  (in 
France)."  This  amendment  was  prepared  by  the  officer  above 
referred  to.  Obviously,  its  language  embodies  precisely  the  grant 
of  mandatory  appellate  power  in  the  Judge  Advocate  General  for 
which  he  had  been  contending  in  his  brief  of  November,  1917 — a 
contention  which  was  at  that  time  explicitly  repudiated  by  both 
yourself  and  myself;  and  since  February,  1918,  the  bill  above  men- 
tioned, curing  the  defect'  of  law,  and  granting  the  power  to  the 
President,  was  still  pending  in  Congress. 

Since  his  return  from  France  in  July,  1918,  this  officer  being  senior 
on  duty  in  my  office,  had  the  actual  supervision  of  all  matters  of 
military  justice;  the  selective  draft  then  requiring  my  most  urgent 
attention,  and  the  volume  of  rulings  coming  from  the  50  officers 
of  the  military  justice  division  being  left  entirely  for  the  final  signature 
of  the  officer  in  question.  He  thereupon  prepared  this  amending 
order,  embodying  the  fundamental  principle  already  expressly 
repudiated  both  by  you  and  by  me,  and  took  it,  not  to  yourself  nor 
to  myself,  but  directly  to  the  office  of  the  Chief  of  Staff.  The  radical 
nature  of  the  proposed  change  of  rule  in  this  respect  was  not  called 
to  the  attention  of  that  office;  rather  was  it  represented  as  involving 
merely  verbal  improvements.  It  issued  on  September  11 ;  and  amidst 
the  mass  of  other  printed  general  orders,  it  never  came  to  either  your 
attention  or  mine  until  recently.  Here,  then,  was  a  second  attempt 
to  introduce  into  our  overseas  practice,  surreptitiously,  the  same 
unsound  assumption  of  power  which  had  been  already  squarely 
rejected  nearly  a  year  before. 

This  sudden  and  inconsidered  introduction  of  such  a  fundamental 
novelty  was  indeed  calculated  to  evoke  objection  from  the  reviewing 


58  MiLii'Ai'.v  .irsTici:  nrjiiNi;  TIM.  \VAK. 

authorities  in  France,  more  especially  from  a  (  ..mmander  iu  the  field 
who  had  boon  accorded  iu  onpreeedented  fashion  that,  independence 
of  military  action  so  widely  exen-U.-d  l>y  (ien.  Perching.  The  un- 
wisdom of  this  art,  added  t«»  iis  .-urreptitioiisness,  was  under  the 
circumstances  extreme.  But  it  is  not  true  to  a^ert  that  the  order 
"is  now  being  opposed  by  the  commanding  general  American  Expe- 
ditionary Forces."  Had  it  been  opposed  or  protested,  this  attitude 
would  have  been  natural  enough.  On  the  contrary,  no  word  of  such 
opposition  or  objection  is  anywhere  on  record  in  my  ollice,  nor  can 
any  trace  of  it  be  found.  The  only  document  in  which  is  found  any 
objection  on  a  point  of  law,  on  the  part  of  the  commanding  general 
in  disagreement  with  the  Acting  Judge  Advocate  General  in  France, 
is  a  memorandum  of  November  14,  10 IS,  raising  a  question  under 
the  Thirty-seventh  Article  of  War.  That  article,  which  applies 
equally  at  home  and  in  the  field,  lays  down  the  usual  modem  rule 
forbidding  that  an  erroneous  ruling  on  evidence  or  procedure  shall 
be  ground  for  disapproval  unless  it  affects  the  susbtantial  rights  of 
the  accused  "in  the  opinion  of  the  reviewing  or  confirming  authority"; 
and  the  contention  of  Geu.  Pershing's  judge  advocate  was  that  under 
this  statute  only  the  reviewing  authority  can  pass  upon  the  question 
of  insufficiency  of  evidence  as  a  substantial  error.  There  is  no 
mention  of  General  Order  No.  84  in  the  entire  document,  nor  any 
reference  to  its  contents.  Neither  in  this  nor  in  any  other  document 
yet  received  from  (leu.  Pershing's  headquarters  is  there  any  oppo- 
sition to  General  Order  No.  84.  The  insinuation  that  here  again 
the  Army — this  time  the  Army  in  France — is  opposing  a  beneficent 
measure  of  reform  in  military  law  is  baseless. 

The  foregoing  two  instances  of  a  groumlless  charge  that  I  have 
opposed  the  reforming  efforts  of  this  officer  are  intimately  connected 
by  him  with  a  third  instance  equally  groundless,  in  which  the  mis- 
representation lias  been  so  significant  to  the  public  that  I  must  in 
this  place  record  its  refutation.  In  the  same  letter  of  this  officer, 
published  in  the  Congressional  Record,  February  19,  last,  page  3983, 
column  1,  the  officer  is  supposed  to  be  exonerating  himself  from 
criticism  made  on  the  floor  of  Congress  that  he  "should  have  gone 
directly  to  the  President"  when  balked  in  his  efforts  made  within 
the  department.  Purporting  then  to  explain  the  "impossibilities 
of  such  a  course,"  he  gives  as  an  illustration  his  action  when  four 
sentences  of  death  were  pending  in  the  department  for  confirmation 
and  when  this  office  had  recommended  execution:  <;I  went  to  the 
head  of  the  office,"  meaning  myself,  of  course,  presumably,  'and 
orally  presented  to  him  my  views  in  opposition.  I  then  filed  with 
him  a  memorandum  in  which  I  did  my  best  to  show  what  seemed 
to  me  to  be  obvious,  that  these  men  had  been  most  unfairly  tried, 
had  not  been  tried  at  all,  and  ought  not  to  die  or  suffer  any  other 
punishment  upon  such  records.  Discovering  that  ihtse  memoranda 


MILITARY   JUSTICE   DURING  THE  WAR.  59 

had  not  been  presented  to  the  Secretary  of  War,  and  feeling  justified 
by  the  fact  that  I  had  no  other  forum  in  this  department,  I  gave  a 
copy  of  the  memorandum  to  a  distinguished  member  of  the  Judiciary 
Committee  of  the  House  and  was  told  by  him  that  he  could  present 
the  cases  to  the  President  himself."  The  story  as  thus  told  is  plausi- 
ble, and  purports  to  condemn  the  superior  authorities  of  the  War 
Department,  and  implies  that  the  subsequent  commutation  was 
obtained  solely  by  this  outside  intervention  of  a  Member  of  Con- 
gress. But  a  simple  perusal  of  the  official  files  now  lying  before  me 
demonstrate  that  the  charge  is  a  mere  fabrication  and  a  cruel  one. 

These  cases  of  the  sentence  of  death  had  been  pending  during 
March,  1918,  in  this  office.  The  several  officers  in  the  Division  of 
Military  Justice  had,  after  scrutiny,  found  no  legal  error,  and  the 
record  in  that  condition,  approved  by  the  very  officer  who  now  makes 
this  charge,  had  been  placed  in  my  hands.  In  the  meanwhile,  I 
submitted  it  informally  to  more  than  one  other  officer,  including  a 
judge  advocate,  not  at  that  time  attached  to  this  office,  who  had 
taken  part  in  the  1916  revision  of  the  Court-Martial  Manual  in  the 
chapter  upon  procedure,  witnesses,  and  evidence,  and  whose  name 
is  well  known  to  the  legal  profession  as  an  authority  on  the  subject 
of  evidence;  the  memorandum  of  the  latter  disclosed  no  reason  to 
doubt  the  adequacy  of  the  proof  of  the  offense.  Meantime,  also,  I 
had  directed  further  inquiries  to  be  made  in  my  office  as  to  the 
practice  in  respect  to  death  sentences  for  the  offense  of  sleeping  on 
post  in  the  theater  of  war;  for  two  of  the  sentences  were  imposed 
for  the  offense  of  sleeping  on  post. 

On  April  5,  1918,  my  memorandum  transmitted  the  four  death 
cases  to  Gen.  March,  Acting  Chief  of  Staff;  the  memorandum  in- 
cluding this  statement,  "There  is  a  very  large  question  in  my  mind 
as  to  whether  clemency  should  be  extended,"  and  calling  attention  to 
the  express  request  of  the  commander  in  chief  in  France  and  of  his 
judge  advocate  (already  alluded  to  above  in  this  letter)  that  the 
death  sentences  should  be  confirmed.  On  April  15  the  senior  officer 
on  duty  in  my  office  (the  one  now  making  these  charges)  presented 
a  memorandum  to  me,  at  my  request,  examining  the  four  cases  in 
detail.  In  the  two  cases  of  sentences  for  refusal  to  drill  this  memo- 
randum refers  to  the  plea  of  guilty  put  in  by  the  accused;  then, 
treating  together  the  two  cases  of  Sebastian  and  Cook,  sentenced  for 
sleeping  on  post,  the  memorandum  continues:  "The  death  penalty  in 
each  of  these  cases  was  awarded  for  sleeping  on  post,  after  a  plea  of 
guilty."  The  memorandum  then  goes  on:  "These  cases  were  not 
well  tried,"  setting  forth  the  inadequate  composition  of  the  court; 
'  those  were  mere  youth;  not  one  made  the  slightest  fight  for  his  life; 
each  was  defended  by  a  second  lieutenant;  such  defense  as  each  had 
was  not  worthy  the  name.  Were  I  charged  with  the  defense  of  such 
a  boy  on  trial  for  his  life,  I  would  not,  while  charged  with  that  duty, 
permit  bim  to  make  a  plea  that  meant  the  forfeit  of  his  life."  This 


60  MII.ITAKY    .irSTlCK    MMMNt;    THK    WAR. 


of  (he  officer  in  question  was  il:itr<l  April  1.").  It  was 
addressed  personally  to  me  in  rough  draft,  and  was  not  such  a  docu- 
ment ns  is  usually  prepared,  in  final  form,  for  transmission  beyond  the 
immediate  chief.  On  the  very  next  day  a  document  dated  April  10, 
signed  by  mo  personally,  was  fded  with  the  Chief  of  Staff;  it  begins: 
"Since  our  interview  on  the  four  cases  from  France  *  *  *  my 
attention  has  been  invited  to  certain  facts  of  which  I  had  no  knowl- 
edge at  the  time  of  the  interview  and  to  which  I  think  j'our  attention 
should  be  invited."  The  memorandum  then  proceeds  in  the  fourth 
and  concluding  paragraph  as  follows:  "Permit  me  finally  to  observe, 
without  reopening  the  case,  that  it  will  always  be  a  matter  of  regret 
to  me  that  the  four  cases  upon  which  we  were  called  upon  to  act 
were  not  well  tried."  The  memorandum  then  continues,  using 
almost  literally  the  language  of  the  above  officer's  memorandum: 
"Each  of  the  four  defendants  was  a  mere  youth,  and  I  am  a  little 
impressed  by  the  fact  that  not  one  of  them  made  a  fight  for  his  life. 
Each  of  the  men  was  defended  by  a  second  lieutenant  who  made  no 
special  plea  for  them.  I  regret  exceedingly  that  in  each  case  the 
accused  was  allowed  to  make  a  plea  of  guilty.  As  counsel  for  them 
I  should  have  strongly  advised  that  they  plead  not  guilty."  It  will 
be  observed  that  this  language  is  almost  a  literal  reproduction  of  the 
language  of  the  above  officers  memorandum  above  quoted  and  filed 
with  me  on  the  very  day  before.  On  the  very  next  day,  viz,  April  17, 
the  Chief  of  Staff  writes  a  memorandum  to  the  Secretary  of  War. 

The  notable  fact  of  chronology  thus  is  that  within  2/t  hours  after 
receiving  the  memorandum  of  the  senior  officer  on  duty  under  me,  in 
opposition  to  the  confirmation  of  these  sentences,  I  myself  drafted 
and  sent  to  the  Chief  of  Staff  a  memorandum  covering  the  very  points 
mentioned  by  the  above  officer  and  using,  in  large  part,  the  identical 
language.  Furthermore,  within  24  hours  more,  or  within  48  hours 
after  the  memorandum  in  question  was  dated,  the  Chief  of  Staff  had 
filed  a  memorandum  with  the  Secretary  of  War.  On  May  1  the 
Secretary  of  War  forwarded  the  records  to  the  President,  recommend- 
ing clemency,  and  on  May  4  the  President  remitted,  by  pardon,  the 
sentence  of  death  for  the  two  men  sleeping  on  post  and  reduced  the 
sentence  of  the  other  two  men  to  three  years  (for  refusal  to  drill),  thus 
following  exactly  the  recommendation  of  the  Secretary  of  War,  and  ex- 
plicitly thanking  the  Secretary  for  his  careful  presentation  of  the  cases. 

Whatever  therefore  may  have  been  said  to  the  President  during 
this  interval  by  the  Member  of  Congress,  it  is  obvious  that  the  Presi- 
dent's action  was  taken  as  the  culmination  of  a  careful  study  of  the 
case  within  the  department  and  of  a  series  of  memoranda  initiated 
in  my  department  and  following  their  due  course  to  the  Secretary  of 
War;  and  that  this  conclusion  was  the  result  of  the  united  efforts  of 
all  the  War  Department  officials  concerned  with  that  subject,  in 
which  the  r61e  of  the  officer  in  question  was  only  a  minor  one,  and 
was  at  the  beginning  far  from  being  the  humane  one. 


MILITARY   JUSTICE   DURIXG   THE   WAR.  61 

But  the  specially  notable  fact  is  that  I  not  only  incorporated  and 
presented  the  ideas  of  the  officer  in  question,  but  that  I  was  unfortu- 
nately thus  led  into  an  important  blunder  of  fact  through  my  reliance 
upon  it.  In  paragraph  four  of  my  memorandum  I  stated,  as  a  ground 
for  doubting  the  thoroughness  of  the  trial,  "in  each  case  the  accused 
was  allowed  to  make  a  plea  oj guilty."  The  Chief  of  Staff,  in  his  memo- 
randum opposing  the  extension  of  clemency,  pointed  out  the  blunder 
as  follows:  "Referring  to  paragraph  4  of  the  memorandum  of  the 
Judge  Advocate  General,  I  do  not  find  that  his  statement,  'I  regret 
exceedingly  that  in  each  case  the  accused  was  allowed  to  make  a  plea 
of  guilty,',  is  a  fact;  the  record  shows  that  two  of  these  men,  namely, 
Private  Sebastian  and  Private  Cook,  did  plead  not  guilty,  and  in  the 
cases  of  the  other  two  men,  Privates  LeDoyen  and  Fishback,  although 
the  accused  pleaded  guilty,  the  court  proceeded  to  take  evidence  in 
the  cases  in  spite  of  that  plea."  The  significant  thing  about  this  error 
in  the  officer's  memorandum  was  that  I,  relying  implicitly  on  his 
memorandum,  was  led  to  repeat  the  same  error  in  my  own  memo- 
randum for  the  Chief-  of  Staff,  thus  furnishing  the  latter  the  opening 
for  his  destructive  criticism  above  quoted. 

It  is  now  apparent  that  the  statement  in  the  officer's  above  quoted 
letter  of  February  19,  "discovering  that  these  memoranda  had  not  been 
presented  to  the  Secretary  of  War,"  is  not  only  a  gross  misrepresenta- 
tion, in  that  the  very  ideas  and  language  of  his  memorandum  were 
incorporated  in  my  own  memorandum,  but  that  this  document  went 
forward  within  twenty-four  hours  to  the  Chief  of  Staff  and  within 
forty-eight  hours  to  the  Secretary  of  War,  and  that  these  documents 
were  officially  on  file  and  could  have  been  inspected  in  the  file  at  any 
moment;  so  that  the  officer  in  question  must  have  gone  to  the  Member 
of  Congress  without  any  attempt  to  discover  the  facts ;  and  one  year 
later  he  has  published  far  and  wide  a  defamatory  statement  which  is 
contrary  to  facts  as  they  stare  out  from  the  face  of  the  official  records. 

I  confess  myself  unable  to  comprehend  such  methods  of  manipula- 
tion in  this  agitation.  Certainly,  to  cope  with  them  would  be  endless, 
and  I  shall  not  attempt  to  continue  the  refutation  of  any  others  of 
the  specific  and  completely  groundless  charges  reflecting  upon  my 
supposed  personal  attitude. 

I  close  this  part  of  my  comments,  regretfully  entered  into  by  me, 
with  the  observation  that  neither  in  these  nor  in  any  other  aspects  of 
this  issue  of  fundamental  legal  principle  has  there  been  exhibited  at 
any  time  any  opposition  on  my  part  to  measures  of  real  improvement 
in  military  law  or  procedure.  The  issue  here  was  simply  whether  the 
incumbent  of  my  office,  whether  acting  ad  interim  or  for  the  four- 
year  term  of  appointment,  should  be  vested  with  a  power  which  be- 
longs, if  anywhere,  in  the  President,  and  which  Congress  alone  can 
grant  to  him.  Neither  ambition  nor  any  other  motive  will  ever  in- 
duce me  to  assent  to  an  illegal  and  unwise  assumption  of  official 
power.  Apart  from  this  single  instance,  I  have  never  opposed  any 


62  MILITARY   JUSTICE   DURING   THE   WAR. 

action  or  proposal  of  the  officer  in  question  directed  either  to  the  im- 
provement of  military  justice  in  general  or  to  the  doing  of  better 
justice  in  an  individual  case;  and  this  for  the  simple  reason  that  ho 
has  never  made  any  such  proposals  to  me.  Except  for  the  period  of 
his  absence  in  France  for  about  90  days  in  April-July  last,  he  has 
been,  since  August,  1917,  the  senior  oflicer  on  duty  in  my  office,  with 
ample  opportunity  to  introduce  general  improvements  of  procedure 
or  to  remedy  individual  cases;  and  the  moral  responsibility  for  not 
initiating  whatever  might  have  been  done  and  was  not  done  lie.-* 
therefore  upon  him  for  the  greater  part  of  the  war  period.  How 
ample  was  that  general  opportunity  to  act,  unchecked  either  by  me 
or  by  yourself,  may  be  plainly  seen  by  the  manner  in  which  General 
Order  No.  84,  above  mentioned,  was  promulgated  in  September,  1918. 
And  how  little  he  did  in  fact  avail  himself  of  individual  opportunities 
may  be  interred  from  the  circumstance  that  in  the  three  cases  re- 
cent ly  cited  on  the  floor  of  Congress  as  cases  of  excessively  severe  sen- 
tences in  which  this  oflice  is  said  to  have  harshly  denied  an  application 
for  mitigation  by  clemency  (C.  M.  Nos.  1 13,076,  1 15,506,  and  Robbin 's 
case),  the  document  containing  the  refusal  to  recommend  clemency 
bears  in  each  of  tlie  tltree  cases  the  signature  of  that  officer  himself. 

I  would  have  preferred  to  be  spared  the  recital  of  these  facts.  But 
even  as  it  is  I  have  refrained  from  the  disposal  of  other  speckle  criti- 
ci>ins,  equally  groundless,  in  which  personal  mention  would  have 
been  necessary.  I  have  said  no  more  than  seemed  unavoidable  in 
refuting  these  unjust  inuendoes,  now  so  widely  spread  that  it  is  per- 
haps impossible  for  the  truth  ever  to  overtake  them. 

m.  RECOMMENDATIONS. 

I  have  not  made  my  position  clear,  Mr.  Secretary,  if  I  have  given 
the  impression  that  in  my  opinion  there  is  nothing  to  change  or  to 
improve  in  our  system  of  military  justice.  My  chief  concern  in  this 
letter  has  been  to  remove  the  slurs  that  have  been  cast  upon  the 
whole  system  as  such;  to  refute  by  plain  facts  the  extreme  and  ex- 
aggerated criticisms  that  are  calculated  to  undermine,  unjustly  and 
needlessly,  the  public  confidence  hi  that  system;  and  to  rodeem,  if  I 
can  assist  in  doing  so,  the  honor  of  that  admirable  band  of  conscien- 
tious and  able  officers  who  have  been  called  to  share  in  its  adminis- 
tration during  the  last  two  years.  I  would  like  the  American  people 
to  know  confidently  and  take  pride  in  the  fact  that  we  possess  a 
genuine  and  adequate  system  of  military  justice,  founded  upon  the 
Constitution  of  our  forefathers  and  the  acts  of  Congress  of  our  con- 
t  emporaries — administered  in  the  trial  courts  by  officers  required  to  be 
familiar  with  it — and  thoroughly  scrutinized  in  its  appellate  stages  by 
professional  lawyers  whose  sole  object  is  to  insure  conformity  to  the 
requirements  of  law  and  to  secure  the  just  protection  of  the  accused. 

That  military  justice  can  not  be  improved  in  any  details  could 
certauily  not  be  maintained  by  anyone.  But  neither  does  anyone 


MILITARY   JUSTICE  DURING  THE   WAR.  63 

maintain  that  civilian  justice  is  perfect.  The  experience  of  the  last 
two  years,  when  carefully  studied,  will  doubtless  reveal  wise  measures 
by  which  improvements  of  the  military  code  can  be  secured.  The 
same  is  true  of  each  one  of  our  institutions,  civil  as  well  as  military, 
that 'has  passed  through  the  crucible  of  war  time.  But  it  will  first 
be  necessary  to  compare  divergent  opinions,  based  on  differences  of 
local  experience,  and  of  important  policies.  At  the  present  moment 
there  lies  before  me  a  voluminous  report,  in  manuscript,  representing 
the  collated  result  of  suggestions  of  improvement,  prepared  at  my 
request  by  each  one  of  the  officers  on  duty  in  my  office,  as  based  on 
his  own  observation  and  experience.  In  its  final  form  this  report 
will  be  of  the  greatest  value. 

Meanwhile,  as  it  is  never  my  preference  to  remain  content  with  a 
defensive  or  critical  attitude,  but  rather  to  offer  constructive  meas- 
ures where  apt  and  necessary,  I  venture  to  select  a  few  proposals, 
representing  those  which  in  my  judgment  offer  the  greatest  promise 
of  benefit  and  require  the  least  assistance  from  statutory  change.  I 
refrain  from  explaining  at  length  in  this  letter  the  effect  of  each  pro- 
posal ;  it  will  be  fairly  obvious  to  one  familiar  with  the  military  system. 

The  specific  proposals  are  as  follows: 

1.  (a)  By  general  order  amend  paragraphs  75  and  76  of  the  Manual 
for  Courts-Martial  relating  to  submission  and  investigation  of  charges, 
so  as  to  require  the  officer  immediately  exercising  summary  court- 
martial  jurisdiction  over  the  command  to  which  the  accused  belongs 
either  to  personally  conduct  the  investigation  or  else  to  depute  it  to 
an  officer  of  experience,  preferably  not  below  the  rank  of  captain, 
and  to  confront  the  accused  with  witnesses,  and  prepare  a  summary 
of  the  evidence  and  settle  upon  it  in  agreement  with  the  accused, 
substantially  as  in  the  British  practice. 

(b)  Amend  paragraph  78  of  the  Manual  "  Determination  of  proper 
trial  court"  by  a  general  order  providing  in  substance  that  the  officer 
exercising  court-martial  jurisdiction  shall  not  order  a  case  to  trial 
until  he  has  received  and  considered  the  written  opinion  of  his  staff 
judge  advocate  or  of  this  office. 

The  intent  of  this  proposal  is,  by  laying  dowTi  with  greater  particu- 
larity the  duties  and  responsibilities  of  investigating  officers  and  of 
staff  judge  advocates,  to  guard  against  any  possibility  of  (a)  hasty, 
ill-considered,  or  arbitrary  action  by  any  commanding  officer,  (b) 
ordering  any  person  to  trial  without  full  and  careful,  as  well  as  im- 
partial, investigation  of  the  case,  and  until  reasonable  probability  of 
his  guilt  has  been  shown,  or  (c)  trivial  cases  going  before  general  courts ; 
and  also  to  insure  adequate  preparation  in  all  cases  ordered  to  trial. 

2.  (a)  Amend   the  forty-fifth  article  of  war  by  striking  out  the 
words  "in  time  of  peace." 

(b)  By  proper  amendments  of  the  Articles  of  War,  so  change  the 
composition  and  increase  the  importance  and  the  powers  of  tho 
special  court-martial,  that  Qike  the  British  district  court-martial) 


-\:  M7MJTQ  THB  WAR. 

may  award  confinement  up  to  two  \ears  with  accompanving  forfeit 
hires  of  pay  and  allowances;  and  may  adjudge  a  *>/*/•./<//,</  senteiicl 
of  dishonorable  discharge,  to  he  suspended  until  the  soldier's  re  leas] 
from  confinement. 

(<•)   Provide    by    general     order    further    amending    the     seveuM 
th  paragraph  of  the  Manual  for  Courts-Martial  byway  of  cant  m 
to  convening  authorities  as  an  expression  of  the  policy  of  tlie  (io> 
eminent,   a   direction,  substantially  in  the  language,  of  the  gcnen 
order  issu»>d  January  '2'2,  1919,  that  "Trial  by  general  court-mart 'u 
will  be  ordered  only  where  the  ])unishment  that  might  be  imposed  bj 
a  special  or  summary  court  or  by  the  commanding  officer  under  th] 
provisions  of  the  one  hundred  and  fourth  article  of  war  would  bj 
under  all  the  circumstances  of  the  case  clearly  inadequate.'1 

I  believe  the  changes  included  in  this  proposal  would  tend  powei 
fully  to  increase  the  number  of  special  courts-martial,  and  correspom 
ingly  decrease  the  general  courts  as  in  the  British  Army;  and  therd> 
automatically  to  reduce  the  possibility  of  unduly  severe  sentence 
Striking  the  words  "in  time  of  peace"  out  of  the  forty-fifth  articl 
of  war,  would  enable  the  President  to  fix  the  maximum  limits 
punishments,  in  war  as  well  as  peace. 

3.  Recognizing  the  need,  in  the  trial  of  serious,  difficult,  and  coi 
plicated  cases  of  an  impartial  legal  adviser  to  the  trial  court;  &n\ 
recognizing  also  the  difficulties  involved  in  the  institutions  of  so  fai 
reaching  a  change  in  our  system  of  court-martial  procedure,  I  pi 
pose,  in  order  to  try  out  the  plan — 

(a]  A  general  order,  modeled  after  the  practice  of  the  British  fk 
general  court-martial,  of  appointing  an  especially  qualified  meml 
on  the  court  who  is  required  to  be  present  at  the  trial  of  all  serious: 
difficult,  and  complicated  cases,  this  member  to  be  a  member  of 
Judge  Advocate  General's  Department,  if  one  be  reasonably  availabh 

4.  Adopt  either  the  amendment  to  Revised  Statutes  1199,  propose! 
by  the  Secretary  <>f  War  January  19,  1918,  which  covers  the  groun] 
more  completely  and  more  flexibly  than  the  now  pending  bills,  ail] 
also  leaves  the  final  power  of  ultimate  decision  in  the  President 
Commander  in  Chief  of  the  Army;  or  else  adopt  the  plan  embodk 
in  the  proposed  joint  resolution  sent  to  Senator  Mdvellar  Februai 
;20,  1919,  which  allows  the  President  to  "correct,  change,  rr\ 

,H<!e  any  sentence  of  a  court-martial  found  by  him  to  have  In 
iieously  adjudged  irhctlnr  by  trror  of  Imi)  or  of  fart.." 
This  would  supply  the  needed  appellate  jurisdiction  over  coi 
martial  sentences,  lacking  under  existing  law,  and  would  place  it 
the  Commander  in  Chief  of  the  Army,  who  would  normally  act 
the  recommendation  of  his  constituted  legal  adviser  in  military  maj 
t(  !<— the  Judge  Advocate  General. 

E.  II.  CROWDEK, 
Judge  Advocate  General. 
The  SECRETARY  OF  WAR. 

o 


